Voluntary and Forced Migration in Latin America: Law and Policy Reforms 9780228012573

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Voluntary and Forced Migration in Latin America: Law and Policy Reforms
 9780228012573

Table of contents :
Cover
Copyright
Contents
Tables and Figures
Acknowledgments
Introduction Voluntary and Forced Migration in Latin America: Law and Policy Reforms
1 Migration Legislation and Policy in Argentina
2 Advances and Setbacks in Brazilian Migration Policy and Legislation
3 Immigration Regulations in Chile: A Critical Analysis
4 Immigration Policies and Legislation in Colombia
5 The Limits of Regularity and Irregularity in Ecuador’s Organic Law on Human Mobility
6 Mexican Immigration Legislation and Policy
7 Immigration Legislation in Peru: Between the Promotion of Human Rights and National Security
8 The Legal Status of the Immigrantin International Law and the Inter‑American Human Rights System
9 The Development of Latin American Regional Integration and Its Implications for States’ Migration Policies
10 Migration Regimes in South America: The South American Conference on Migration
Conclusion The Evolution, Common Features, and Trends of Migration Policies and Reforms in Latin America
Contributors
Index

Citation preview

V o l u n ta ry a n d F o rced Mi grati on in L at in A meri ca

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M c G ill- Q ue e n’s R e f uge e a nd F o rce d Mig r ati o n St udi e s Series editors: Megan Bradley and James Milner Forced migration is a local, national, regional, and global challenge with profound political and social implications. Understanding the causes and consequences of, and possible responses to, forced migration requires careful analysis from a range of disciplinary perspectives, as well as interdisciplinary dialogue. The purpose of the McGill-Queen’s Refugee and Forced Migration Studies series is to advance in-depth examination of diverse forms, dimensions, and experiences of displacement, including in the context of conflict and violence, repression and persecution, and disasters and environmental change. The series will explore responses to refugees, internal displacement, and other forms of forced migration to illuminate the dynamics surrounding forced migration in global, national, and local contexts, including Canada, the perspectives of displaced individuals and communities, and the connections to broader patterns of human mobility. Featuring research from fields including politics, international relations, law, anthropology, sociology, geography, and history, the series highlights new and critical areas of enquiry within the field, especially conversations across disciplines and from the perspective of researchers in the global South, where the majority of forced migration unfolds. The series benefits from an international advisory board made up of leading scholars in refugee and forced migration studies.   1 The Criminalization of Migration Context and Consequences Edited by Idil Atak and James C. Simeon   2 A National Project Syrian Refugee Resettlement in Canada Edited by Leah K. Hamilton, Luisa Veronis, and Margaret Walton-Roberts   3 Strangers to Neighbours Refugee Sponsorship in Context Edited by Shauna Labman and Geoffrey Cameron   4 Send Them Here Religion, Politics, and Refugee Resettlement in North America Geoffrey Cameron   5 The Precarious Lives of Syrians Migration, Citizenship, and Temporary Protection in Turkey Feyzi Baban, Suzan Ilcan, and Kim Rygiel

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  6 The Urbanization of Forced Displacement UNHCR , Urban Refugees, and the Dynamics of Policy Change Neil James Wilson Crawford 7  Finding Safe Harbour Supporting the Integration of Refugee Youth Emily Pelley   8 Documenting Displacement Questioning Methodological Boundaries in Forced Migration Research Edited by Katarzyna Grabska and Christina R. Clark-Kazak   9 Voluntary and Forced Migration in Latin America Law and Policy Reforms Edited by Natalia Caicedo Camacho and Luisa Feline Freier

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Voluntary and Forced Migration in Latin America Law and Policy Reforms

Edited by

Nata lia C aicedo Cam acho a nd Luisa  Fel ine F re ie r Translated by

Andrea Kvietok Dueñas and Dustin Welch García

McGill-­Queen’s University Press Montreal & Kingston • London • Chicago

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©  McGill-Queen’s University Press 2022 ISB N 978-0-2280-1183-5 (cloth) ISB N 978-0-2280-1184-2 (paper) ISB N 978-0-2280-1257-3 (eP df ) Legal deposit third quarter 2022 Bibliothèque nationale du Québec This book is a translation, with revisions, of Políticas y reformas migratorias en América Latina: Un estudio comparado, edited by Natalia Caicedo Camacho. Lima: Fondo Editorial Universidad del Pacífico, 2020. Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free

Library and Archives Canada Cataloguing in Publication Title: Voluntary and forced migration in Latin America: law and policy reforms /  edited by Natalia Caicedo Camacho and Luisa Feline Freier; translated by Andrea Kvietok Dueñas and Dustin Welch Garcia. Other titles: Tendencias y retos de las políticas y reformas migratorias en América Latina. English Names: Caicedo Camacho, Natalia, editor. | Freier, Luisa Feline, editor. Series: McGill-Queen’s refugee and forced migration studies; 9. Description: Series statement: McGill-Queen’s refugee and forced migration studies; 9 | Translation, with revisions, of: Tendencias y retos de las políticas y reformas migratorias en América Latina: Un estudio comparado. | Includes bibliographical references and index. Identifiers: Canadiana (print) 20220218684 | Canadiana (ebook) 20220218781 | ISB N 9780228011835 (cloth) | IS BN 9780228011842 (paper) | ISB N 9780228012573 (eP DF ) Subjects: L CS H: Emigration and immigration law—Latin America. | LC SH: Refugees—Legal status, laws, etc.—Latin America. | L C SH : Forced migration—Latin America. Classification: L CC KG565 .V 65 2022 | DDC 342.808/2—dc23

This book was typeset by Marquis Interscript in 10.5/13 Sabon.

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Contents

Tables and Figures  vii Acknowledgments ix Introduction: Voluntary and Forced Migration in Latin America: Law and Policy Reforms  3 Natalia Caicedo Camacho and Luisa Feline Freier   1 Migration Legislation and Policy in Argentina  15 Lucila Nejamkis and Lila García   2 Advances and Setbacks in Brazilian Migration Policy and Legislation  46 José Antônio Peres Gediel and Soledad Castillo Jara   3 Immigration Regulations in Chile: A Critical Analysis  77 Jaime Bassa Mercado and Fernanda Torres Villarrubia   4 Immigration Policies and Legislation in Colombia  106 Natalia Caicedo Camacho   5 The Limits of Regularity and Irregularity in Ecuador’s Organic Law on Human Mobility  147 Javier Arcentales Illescas and Gardenia Chávez Núñez   6 Mexican Immigration Legislation and Policy  185 Felipe Sánchez Nájera   7 Immigration Legislation in Peru: Between the Promotion of Human Rights and National Security  222 Luisa Feline Freier and Valeria Aron Said

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vi Contents

  8 The Legal Status of the Immigrant in International Law and the Inter-American Human Rights System  251 Laura García-Juan   9 The Development of Latin American Regional Integration and Its Implications for States’ Migration Policies  280 Natalia Caicedo Camacho 10 Migration Regimes in South America: The South American Conference on Migration  309 Cristián Doña Reveco and Mayra Feddersen

Conclusion: The Evolution, Common Features, and Trends of Migration Policies and Reforms in Latin America  347 Natalia Caicedo Camacho, David Moya, Karlos Castilla, Alba Alonso Contributors 379 Index 385

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Tables and Figures

Tables 1.1 Foreign-born population according to population censuses, 1869–2010 (per cent)  17 1.2 Total population and foreign population according to origin, 1869–2010 18 1.3 Evolution of Latin American immigration, 1869–2010  19 5.1 International entries and exits, general movement, 2015–18 153 5.2 International entries and exits of non-nationals, 2015–18  155 5.3 Migratory balances of Venezuelan nationals in Ecuador, 2015–17 174 5.4 Migratory balances of Ecuadorian population, 1997–2017 176 5.5 Main destination countries of Ecuadorian emigrants, 2017 177 5.6 Migratory balances of non-nationals, 1997–2017  178 5.7 Main nationalities of non-nationals, 2017  179 6.1 Asylum applications in Mexico, 2013–18  195 6.2 Residence permits for migrants in Mexico  200 6.3 Population of foreign-born residents in Mexico  202 6.4 Differences between government agencies responsible for immigration policy  203 6.5 Budget allocation for the agencies responsible for immigration policy 203 6.6 Rights recognized for migrants  205 6.7 Migration detentions and deportations  209

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Tables and Figures

6.8 Asylum applications of Venezuelan people in Mexico, 2013–18 212 7.1 Peru: Immigrant population, 1960–2000  228 7.2 Peru: Immigrant population, 2010–20  228 7.3 Peru: Refugees by continent, 2000–20  239 10.1 Participant countries in C SM meetings  317 10.2 Participant international organizations in CS M meetings  317 10.3 Topics and main agreements of the South American Conference on Migration  333

F ig u r e s 2.1 Brazil: Total number of asylum requests per year (of all national origins), 2000–17  55 4.1 Asylum applications submitted per year by Venezuelan citizens in Colombia, 2003–17  111 4.2 Number of asylum applications per year (of all national origins) filed in Colombia, 2000–17  119 5.1 Total asylum applications filed in Ecuador per year, 2000–17 152 5.2 Total asylum applications filed by Venezuelan citizens in Ecuador, 2000–17  152 5.3 Migratory balances of Ecuadorian nationals’ mobility, 1997–2007 154 5.4 Percentages of Ecuadorian emigrants residing in the top twenty destination countries, 2017  155 5.5 Migration balances of non-nationals in Ecuador, 1997–2017 156 5.6 Main nationalities entering Ecuador, 2017  157 5.7 Main nationalities in Ecuador according to migration balances, 2017  157 7.1 Peru: Total numbers of asylum seekers (of all national origins), 2000–20  240

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Acknowledgments

This volume would not have been possible without the combined efforts of many people. First and foremost, we want to thank the authors for their enormous dedication and effort in providing updates to the chapters that make up this volume, amidst the many hardships brought by the Covid-19 pandemic. We also want to extend our recognition and gratitude to Andrea Kvietok and Dustin Welsh García for the translation of this manuscript, and to Soledad Castillo Jara for her wonderful research and editorial assistance. Finally, we would also like to thank the Universidad del Pacifico’s Editorial for believing in this project and for giving us their trust and support for the Spanish edition of this book, as well as the three independent evaluators who revised the book and provided comments, which notably improved the quality of this edited volume.

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In t ro du cti on

Voluntary and Forced Migration in Latin America: Law and Policy Reforms N a t a l i a C a i c e do C a ma c ho a n d   L u i s a   F e lin e Fr eier

1 A n O v e rv ie w o f L ati n Ameri can I m m ig r at io n a n d R e f ugee Legi s lati on The exponential increase in migration flows, and their social, economic, and political effects, make immigration one of the most significant challenges for Latin American countries to address in the coming decades. According to data from the International Organization for Migration’s (IOM) World Migration Report 2020, between 1990 and 2019, intraregional migration flows doubled from 4 to 8 million.1 In addition, as of 2020, 10.9 million migrants were residing in South America and 3.9 million in Central America and the Caribbean.2 As of January 2022, almost 5 million displaced Venezuelan citizens had settled across the region.3 Far from constituting simply a circumstantial phenomenon, this structural shift in human mobility will lead to the transformation of Latin American societies, and will thus require policies that live up to this challenge. Against that backdrop, this book offers a structured, systematic, and comparative overview of Latin American immigration and refugee legislation, based on a multi-year collaborative effort between researchers from across Latin America and Spain. It is worth noting the key characteristics of the region’s migration dynamics: countries of origin, transit, and destination co-exist, and some countries, such as Mexico and Colombia, encompass all three characteristics. Internal and intra-regional migration flows also

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converge, with the region experiencing a simultaneous increase in extra-continental immigration and transmigration. Given that states tend to share borders with two or more countries, cross-border ­mobility also forms a historically quintessential aspect of daily social reality in the region. Latin America’s complex migration dynamics thus ­present a unique set of cases through which to reflect on how ­countries in the Global South regulate immigration and refugee flows. At the same time, the region offers remarkably different, and, indeed, exceptionally progressive, approaches to managing human mobility, including protecting refugees. These deserve to be better understood, because they can serve as references for countries worldwide. The governments of the countries studied in this edited volume have all demonstrated a heightened sense of awareness about the need to regulate human mobility, primarily via legislative reform and modernization, with a strong focus on migrants’ and refugees’ rights. These norms replaced legislation from the 1970s and 1980s, which focused strongly on population control and national security.4 The majority of Latin American countries have thus enacted immigration laws that seek to respond to new migratory realities. Some countries, such as Colombia, maintained scattered regulations while becoming one of the main recipients of forced migration. This situation only changed with the enactment of immigration law 2136 in 2021. Studying Latin American immigration and refugee laws is also relevant given the substantial advances in regional integration efforts, which have clear implications for human mobility.5 The creation of the Southern Common Market (MERCOSUR), specifically its attributing of mobility and residence rights to migrants, represented a great commitment to provide migrants of the MERCOSUR community with a common migratory status, and to promote and facilitate the movement of migration flows between member states. In the Andean Community (C A N ), proposals for social security schemes or visas showcase how supranational integration processes have incorporated human mobility into their political agenda. Three key characteristics of the region’s immigration and refugee legislation are worth noting. First, the laws tend to recognize a broad set of socio-economic rights and favour the regularization of immigrants in an irregular (unlawful) situation, i.e., illegal immigrants.6 More specifically, this volume discusses legislation that grants a wide array of rights to individuals with legal residence status, such as those in Argentina or Ecuador, particularly their rights linked to their participation in labour markets. The laws also recognize that

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migrants in an irregular situation have a number of socio-economic rights. Legislative advances have further cemented the right to family ­reunification across the region, which implies a deeper and perhaps more empathetic understanding of the realities and needs of people on the move. Second, the region’s legislation advocates for an administrative system of visas and residence status that improves the efficiency of migratory procedures. Various laws propose simplifying migration management, i.e., by combining visa and residence regimes. More specifically, the region’s bet in favour of a governance of human mobility, which promotes long-term migration, can be seen by its provision of long-term residence categories, as well as by its recognition of the right to family reunification mentioned above. Third, Latin American immigration and refugee legislation, at the same time, continues to include a model of sanctions and expulsions that prioritizes the control of migratory flows over the right to mobility. While significant advances have been made in this regard, such as the non-criminalization of irregular immigration, many national regimes remain characterized by high levels of discretion, which, in many cases, allow for arbitrariness and few administrative and judicial guarantees. With the exception of the Argentine and Ecuadorian laws, little progress has been made to craft legislation that proposes alternative measures to expulsion if migrants are in an irregular situation, or even a right to not be expelled when migrants have social and / or familial ties in the country. As mentioned, the region’s national legislative awakening in the area of immigration and refugee laws has gone hand in hand with the development of a migration agenda in regional integration processes. The MERCOSUR residence agreement represents the most significant progress on the right to free movement for South American citizens, and has also laid the foundation for the construction of a shared ­citizenship.7 Nonetheless, there are barriers associated with this agreement. For example, in most cases, states have taken more than ten years to incorporate the MERCOSUR residence agreement into their internal regulations. Currently, there is no common application framework that interprets, or controls, possible violations of the application that each state decides to give. Furthermore, the MERCOSUR residence agreement excludes extra-regional migrants.8 Another issue is the protection of forcibly displaced populations. The laws of all the Latin American countries analyzed in this volume have incorporated the protection of forced migrants in broad terms, both in  

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the subjective protection of refugees derived from the 1951 Convention Relating to the Status of Refugees (1951 Convention), and in their objective protection via the 1984 Cartagena Declaration on Refugees (Cartagena Declaration). The latter proposes an extended refugee definition that encompasses persons who have fled their country because their lives, safety, or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights, or other circumstances that have seriously disturbed public order.9 The region’s laws also offer substantial socio-economic protection to both asylum seekers and recognized refugees.10 However, we observe substantial gaps in applying these new laws, i.e., reflected in the extremely low ratios of refugee status determi­ nation, or subsidiary protection, which point at a lack of effectively applying both refugee definitions. Specifically, responses to the forced displacement crises of Venezuela – with over 6 million displaced as of February 202211 – Haiti, and Central America have revolved around ad hoc regularization procedures that mainly draw from immigration law and openly deny the forced nature of these movements.12 Coordinated policy responses on the regional level have also been slow. Since 2020, emergency responses to the Covid-19 pandemic have only further exacerbated migrants’ and refugees’ limited integration and precarity. For example, Venezuelans have been excluded from state-led socio-economic assistance policies, and in many countries in the region borders have been militarized to curb incoming migration flows. One noteworthy exception is the Colombian government’s decision, in 2021, to grant regular status for 10 years to nearly 2 million Venezuelan migrants and refugees.13 Neighbouring countries have mirrored such efforts, albeit to lesser degrees. Latin America’s forced displacement crises thus require coordinated responses that are based on efficiently managing the administration of human mobility, which recognizes all procedural guarantees, and on fully applying principles of human rights protection enshrined in national legislations, including the right to migrate and the right to receive effective protection in contexts of forced displacement. Future legislative implementations should be geared toward expanding the recognition and guarantee of rights; a greater openness of migration policies that promote safe human mobility; the effective application of protection under the terms of the 1951 Convention and the Cartagena Declaration; and the coordination of policies to protect migrants’ and refugees’ rights within the framework of regional integration institutions.

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2 P r e v io u s S tudi es Although South-South migration flows are just as important as SouthNorth migration,14 overall the literature has demonstrated little interest in providing in-depth understandings of migration policy in the former regions, establishing a geographical bias that tends to focus on the latter instead.15 This bias also affects Latin America, despite the region’s vast history of highly heterogeneous migration flows and the unique nature of its immigration and refugee laws. Interdisciplinary interest in Latin American domestic immigration and refugee policy – mainly in law, philosophy, history, and the social sciences – began in the 1990s and grew during the 2000s, in part as a result of new legislation that was adopted in the first years of the twenty-first century.16 In their critical review of the literature on Latin American migration policy, Fernández Rodríguez, Freier, and Hammoud-Gallego17 categorize extant scholarship on the topic into three main groups of studies: those that 1) describe the region’s migration legislation; 2) examine the discourse and implementation gaps of migration policy; and 3) identify the social, political, and legal factors that explain how migration policy in the region is oriented. Although the region offers important empirical evidence for advancing migration policy theory, the authors nonetheless argue that the contribution of the regional literature has been limited in scope. This disconnect can be explained by three factors. First, regional scholarship has placed a significant emphasis on descriptive legal analyses of specific countries’ legislation, as well as their effect on the legislative development of other states in the region. Largely missing from these analyses, however, are other integral aspects of migration policy, such as the policy implementation process. Second, most analyses are guided by a normative perspective, which – although ­valuable to policy-making – does not address the causes and effects of migration policies from a social sciences perspective. Third, despite the large body of empirical evidence, there is a lack of comprehensive theoryinformed studies across the different disciplines. Legal analyses sometimes omit literature reviews, which would help understand a specific study’s contribution to the field, and also fail to incorporate the international or regional legal frameworks of the domestic laws being analyzed. Even though the majority of works are case studies of one particular country’s legislation, some scholars have offered comparative overviews of the topic in question. For example, in The National versus

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the Foreigner in South America, Acosta18 provides an in-depth discussion of South American migration and citizenship law via a historical comparative analysis of over two hundred years of legislation in ten South American countries. Organized chronologically and thematically, the book examines the region’s open borders and equal rights approach vis-à-vis conceptualizations of the “national” and “foreigner” categories. Despite its many strengths, however, the book lacks an in-depth systematic comparison of immigration and refugee legislation across countries in the region. Furthermore, various reports have addressed the policy reactions to Venezuelan displacement across the region.19 Gandini, Lozano Ascencio, and Prieto’s20 edited volume presents not only a systematic comparison of the region’s policy reactions to the Venezuelan displacement crisis – and migrants’ integration experiences – but also includes country sections on their normative frameworks. However, the depth and scope of this legislative analysis varies from country to country. This edited volume is unique in that it offers a structured, systematic, and comparative analysis of the migration legislation of seven countries (Argentina, Brazil, Chile, Colombia, Ecuador, Peru, and Mexico). All of the country chapters first provide a historical overview of the evolution of migration policy and legislation, followed by an analysis of the different kinds of migration flows and types of migrant profiles in each country. The authors each then delve into different aspects of the country’s current immigration, asylum, and nationality legislation and policy, such as the recognition of foreigners’ rights, residence and immigrant labour regimes, expulsion regimes, and policies for immigrant integration. At the regional level, the volume also examines the main international instruments that facilitate the normative approach in migration and migrants’ rights, such as MERCOSUR, CAN, the South American Conference on Migration (S A C M ), and, within its jurisdiction on human rights, the Inter-American Court of Human Rights (IAC tHR). The book also has a concluding study highlighting the main elements that emerge from a joint reading of national regulations with the supranational parameters established in those frameworks. Finally, each chapter discusses the measures and policies adopted in response to the Venezuelan displacement crisis without focusing on the displacement statistics linked to these often-volatile policy reactions, thus avoiding the risk of being quickly outdated. We thus hope that the

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present edited volume will provide an important basis for scholars and practitioners interested in Latin American migration and refugee law and policy, and the advancement of their theory-driven analysis.

3 S t ru c t u r e o f t h e Edi ted Volume This volume is structured as follows. Chapter 1 analyzes Argentine migration legislation and policy. After providing a historical and contextual overview of the evolution of migration policy and legislation in the country, the authors delve into an analysis of the strengths and weaknesses of Argentina’s 2004 immigration law. More specifically, while the law positions migrants as subjects of rights and grants them a broad set of socio-economic rights, such as family reunification – even for migrants in an irregular situation – the judiciary tends to privilege the decisions of the administration over the rights of immigrants. The chapter also describes the limitations of Argentine immigration policy, questioning the link between residence and the labour and expulsion regimes, as well as the lack of comprehensive integration policies. Finally, the authors analyze the influence of MERCOSUR in the country’s immigration policies, especially the residence agreement. Chapter 2 examines the advances and setbacks of Brazilian migration policy and legislation. First, it presents an overview of the country’s history of migration and migration governance – from colonial times to the enactment of the 2017 migration law. The authors place special emphasis on the Brazilian regulatory framework, because, at least before the onset of the Venezuelan displacement crisis, Brazil was one of the main receiving countries of refugees in the region. According to the IOM, as of mid-2020, there were about 1.1 million international migrants residing in Brazil.21 The chapter also covers the constitutional and legal frameworks that grant migrants an array of rights, and the country’s labour regime, focusing especially on the protection measures included in labour legislation. The authors also analyze the expulsion regime – from an administrative perspective – as well as the guarantees provided for protecting migrants’ rights. They conclude that Brazilian immigration policy and legislation present more advances than setbacks. Chapter 3 provides an overview of Chile’s history of migration governance and a discussion on increasing immigration flows, and goes on to analyze characteristic elements of Chilean immigration

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legislation, specifically those related to its theoretical foundations and to immigrants’ fundamental rights, especially in admission and deportation procedures. The authors then examine constitutional and Supreme Court decisions, as well as Congress’s approval of the new immigration and aliens law on 20 April 2021. The authors conclude that Chilean migration institutions reflect deeply-rooted cultural structures of discrimination and that the theoretical and normative models adopted – even in the case of the new immigration law – do not meet the needs of the country’s migratory reality. Chapter 4 analyzes Colombian immigration policy, which has been characterized by general instability throughout the years, as seen in the constant reforms of immigration regulations that have been put to the test by the Venezuelan displacement crisis. The chapter also examines the high level of discretion and the absence of judicial controls in Colombia’s immigration policy, as well as in the administrative procedures required for access to nationality, the recognition of refugee status, the issuance of visas, and expulsion procedures. The author detects scenarios of great arbitrariness, with migration authorities given leeway to violate immigrants’ rights. In the absence of a rights catalogue, the author also analyzes the jurisprudence of the Constitutional Court of Colombia on the matter. Chapter 5 begins with an overview of Ecuador’s dynamics of human mobility over the years, which have been profoundly shaped by crises, economic growth, and the implementation of national and regional policies. Ecuador’s migration governance framework combines laws and constitutional guarantees and recognizes migrants’ rights. The 2008 Constitution establishes the principle of universal citizenship and recognizes people on the move as a vulnerable group. The 2017 Organic Law on Human Mobility partially reflected a human rights perspective and narrowed the scope of migrants’ rights enshrined in the 2008 constitution. The authors then conclude that, despite this constitutional framework, the government has been unable to respond to the current migratory reality from the perspective of the right to human mobility. Chapter 6 starts off by detailing five major stages in Mexico’s migration legislation from independence to the present. For the current immigration legislation, the author focuses on the rules of access to nationalization, as well as on the risks of statelessness that these may generate. The chapter also provides an in-depth analysis of three ­migration regimes in the country: 1) the regime of international

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protection, as well as the shortcomings of the current system, which helps readers understand Mexico’s breach of international commitments on the matter; 2) the regular migration regime, which includes the different pathways to accessing residence status, as well as recognizing migrants’ rights; and 3) the irregular migration regime, which exposes how deportation procedures, detention, and immigration centres violate migrants’ human rights. The author also critically examines the process of the externalization of the United States border to Mexico, and the subordination of Mexican immigration policy to the agenda and interests of the United States. Finally, the chapter describes the government response to complex situations like the Venezuelan displacement crisis and the Central American migrant caravans. Chapter 7, on Peruvian migration legislation, focuses on the processes that led to the enactment of new immigration laws in 2015 and 2017, more specifically Legislative Decree No. 1,350 and its respective regulations  – a historic milestone in the country’s migration policy trajectory – as well as a national migration policy. These legislative advances aimed to ensure that immigration was articulated and managed efficiently between institutions and governments. Despite acknowledging the advances made by Legislative Decree No. 1,350 – in comparison with previous laws – the authors put forward the idea that the tension between two ideological paradigms is evident in Peru’s immigration governance: on the one hand, the decree promotes migrants’ human rights, and on the other, it maintains a protectionist vision of the state in matters of national security and migration control. Chapter 8 on the IACtHR analyzes the construction and interpretation of some of the rights that make up the legal status of immigrants in international law. The author begins by examining the unique nature of the international human rights instruments that deal specifically with immigrants, followed by an analysis of the jurisprudence of the InterAmerican Human Rights System in this regard. Concern for migrant workers and their families is gaining importance, because migration flows to countries that until recently had been senders, and not receivers, are on the rise. The Inter-American Commission of Human Rights (IACHR) and the IACtHR have both referred to a plethora of situations in which migrants’ condition as non-nationals exacerbates their vulnerability, directly influencing the violation of their rights. The chapter focuses particularly on state measures and practices in the area of migration control, and concludes that, although the IACtHR’s jurisprudence does take into account the principle of equality and

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non-discrimination based on migration status, there is still much work to be done to establish the guarantees and recognize the rights of migrants in an administrative irregular situation. Chapter 9, on regional integration, analyzes the migration-related decisions and policies adopted within the framework of MERCOSUR’s integration process. Since the creation of MERCOSUR in 1991 up until the adoption of the residence agreement in 2002, the MERCOSUR states aimed to facilitate the minimal movement of workers through key agreements on social security and passport control. The residence agreement, however, brought about landmark changes, such as the right to free movement for member states’ nationals, as well as the guarantee of rights and the principle of equality and non-discrimination. But subsequently, the ten-year Action Plan proposal, introduced via MERCOSUR citizenship, has not yielded the expected results. The authors also examine the adoption of regional responses to the Venezuelan displacement crisis, albeit at the margins of MERCOSUR jurisdiction, which ultimately showcases that it is impossible for MERCOSUR to serve as the institution in charge of promoting human mobility agreements. The chapter also addresses specific CAN migration-related agreements, which have thus far not looked beyond border issues. Chapter 10 focuses on SA C M as a regional platform for member states to share regional good practices, discussions, lessons, and knowledge about their ­contribution to development and to migrants’ human rights. The conference’s main strength, however, also encompasses its main weakness: the lack of binding agreements, which allows states to have broader discussions, but at the same time limits the fulfillment of the agreements. Moreover, the conference’s nascent institutionalization and financial fragility put the permanence of this forum at risk. The final chapter examines the main contributions of the book and points out the main conclusions on immigration policies and legislation in the countries and institutions discussed. More specifically, the authors discuss the effect of international human rights law on improving the migration policies of the different states, or on their constitutional interpretations, which together have allowed the principles of equality and non-discrimination to be expanded. The chapter also analyzes the recognition of rights and freedoms for migrants, as well as residence and expulsion systems, from the different perspectives of the contributions. It concludes with a call for the need to design and implement public policies against discrimination and xenophobia – a policy still needed for all the countries analyzed in this book.

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No t e s   1 International Organization for Migration (IOM), World Migration Report 2020 (Geneva: I OM , 2019), 96, https://publications.iom.int/system/files/ pdf/wmr_2020.pdf.   2 “WO R L D : Key Migration Statistics,” Migration Data Portal, last modified 20 January 2021, https://migrationdataportal.org/data?amp%3Bfocus= profile&t=2020&i=stock_abs_&m=2.   3 “Refugiados y Migrantes de Venezuela,” R 4 V , 5 June 2021, https://www. r4v.info/es/stock.   4 Diego Acosta, The National versus the Foreigner in South America. 200 Years of Migration and Citizenship Law (Cambridge: Cambridge University Press, 2018).   5 Diego Acosta and Luisa F. Freier, “Regional Governance of Migration in South America,” in Handbook of Migration and Globalisation, ed. Anna Triandafyllidou (Cheltenham: Edward Elgar Publishing, 2018).   6 Acosta, The National.   7 Acosta and Freier, “Regional Governance.”   8 Diego Acosta and Luisa F. Freier, “Turning the Immigration Policy Paradox Upside Down? Populist Liberalism and Discursive Gaps in South America,” International Migration Review 49, no. 3 (2015).   9 Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, 1984. 10 Luisa F. Freier and Jean-Pierre Gauci, “Refugee Rights Across Regions: A Comparative Overview of Legislative Good Practices in Latin America and the EU ,” Refugee Survey Quarterly 39, no. 3 (2020). 11 “Refugiados y Migrantes de Venezuela,” R 4 V , 5 June 2021, https://www. r4v.info/es/stock. 12 Diego Acosta, Cécile Blouin, and Luisa F. Freier, “La emigración venezolana: respuestas latinoamericanas,” working paper, Fundación Carolina, 2019, https://www.fundacioncarolina.es/wp-content/uploads/2019/04/DT_FC_03. pdf; Luisa F. Freier, Isabel Berganza, and Cécile Blouin, “The Cartagena Refugee Definition and Venezuelan Displacement in Latin America,” International Migration special issue (2020); Felipe Sánchez Nájera and Luisa F. Freier, “The Cartagena Refugee Definition and Nationality-based Discrimination in Mexican Refugee Status Determination,” International Migration, under review. 13 Luisa F. Freier, “Colombia Went Big on Migration. Will Others Follow?” Americas Quarterly, 11 February 2021, https://www.americasquarterly. org/article/colombia-went-big-on-migration-will-others-follow.

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14 O E C D -UNDES A, La migración mundial en cifras (Washington, DC : O E C D -UNDES A, 2013), 2, https://www.oecd.org/els/mig/SPANISH.pdf. 15 Acosta and Freier, “Turning the Immigration Policy.” 16 Nieves Fernández Rodríguez and Luisa F. Freier, “Narrow Normativity? A Critical Review of the Literature on Latin American Migration Policy” (unpublished working paper, 2021). 17 Nieves Fernández Rodríguez, Luisa F. Freier, and Omar HammoudGallego, “Importancia y limitaciones de las normas jurídicas para el estudio de la política migratoria en América Latina,” in Abordajes socio­ jurídicos contemporáneos para el estudio de las migraciones internacionales, ed. Luciana Gandini (Mexico City: U N AM-Secretaría de Desarrollo Internacional, 2021). 18 Acosta, The National. 19 Acosta, Blouin, and Freier, “La emigración venezolana”; Andrew Selee, Jessica Bolter, Betilde Muñoz-Pogossian, and Miryam Hazán, “Creativity amid Crisis: Legal Pathways for Venezuelan Migrants in Latin America,” Migration Policy Institute, 30 January 2019. 20 Luciana Gandini, Fernando Lozano Ascencio, and Victoria Prieto, eds., Crisis y migración de población Venezolana. Entre la desprotección y la seguridad jurídica en Latinoamérica (Mexico: Universidad Nacional Autónoma de México, 2019). 21 “B R A Z I L : Key Migration Statistics,” Migration Data Portal, last modified 20 January 2021, https://migrationdataportal.org/data?cm49=76&% 3Bfocus=profile&i=stock_abs_&t=2020.

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1 Migration Legislation and Policy in Argentina L u c i l a N e j a m k i s a n d Lila G a r c ía 1 O r ig in a n d E vo l u t ion of Argenti na’s M ig r at io n P o l icy and Legi s lati on In Argentina, the state expressed an interest in migration very early on. Three main laws have defined the country’s approach to migration: Law No. 817 of Immigration and Colonization (1876), popularly known as the Avellaneda Law; Law No. 22,439 (1981), known as the Videla Law, which was adopted during the military dictatorship; and the current Immigration Law (2004), or Law No. 25,871 (hereinafter referred to as M L ), which is based on an access to rights model. According to Cook, following the adoption of Law No. 817, the government officially acknowledged, and provided administrative support for migration policies that encouraged the colonial settlement of immigrants within the country.1 While the 1853 Argentine national constitution had already “encouraged European migration,” as part of the country’s national project,2 the Avellaneda Law continued with that progress proposal by “welcoming foreign immigrants – preferably farmers – as settlers in lands granted by the State.”3 However, the immigrants who arrived were not the ones “desired” by the political elites As a result, via the 1902 Law of Residence (No. 4,114) and the 1910 Law of Social Defense (No. 7,209), a group of restrictive rules started taking shape, regulating Argentine immigration for over a century. This perspective has its corollary in the migration policies created during the last military dictatorship (1976–83), which reinforced the model of society the de facto government had tried to impose through

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state terrorism. In fact, in 1981, and as part of this project, the Videla Law was sanctioned. No article in this law addresses the rights of foreigners; on the contrary, the state established a unilateral relationship in which immigrants were only objects of the law, not subjects. Studies that have thoroughly analyzed migration policies during this period4 all characterize them as highly restrictive regarding the entry and regularization of migrants from bordering countries. The power of the executive branch was expanded to deport and control the population to the point that the duty to denounce irregular migration status was extended to hospitals, social services, notaries, and schools. So, at the turn of the twenty-first century, twenty years after the end of the dictatorship, Argentina was still acting on legislation created during that period, with constitutional mandates that privileged European migration. Thus, it seems fitting to point out that the entry into force of the current ML, which was pushed and discussed by diverse civil organizations,5 brought a historic change in Argentina. First, the model of society that is implied in this rule differs considerably from what had motivated migration policies over the past thirty years, since it also takes a stance on important debates that had long been postponed. Second, the ML also takes a stance on international debates on migration, recognizing migration as a human right: the ML establishes that “the right to migrate is essential and inalienable and the Republic of Argentina guarantees it based on the principles of equality and universality.”6 Most of the ML resonates with this orientation. Chapter 1 of the first article includes equality of treatment and details a series of fundamental rights to which migrants are entitled: labour rights, social security, medical attention, education, access to information about rights and duties, participation and inclusion in processes about the administration of the communities where they live, as well as the right to reunite with their families. Similarly, what stands out is the consolidation of a regional migration policy. This is at the core of the Southern Common Market (M E R C O S U R ), which defines the integration of foreigners into national society in terms equal to nationals, as the objective of Argentine migration policy. The ML even includes a chapter on migrant Argentineans. However, none of the above blocked the state’s power to decide its own migration policies, for example to admit or remove migrants. Indeed, some negative practices that try to prevent full migrant legal personhood still persist; many of them will be mentioned in the following sections. Also, many of these practices can be seen, for example,

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Table 1.1 Foreign-born population, according to population censuses, 1869–2010 (percentage) 1869

1895

1914

1947

1960

1970

1980

1991

2001

2010

12.1

25.4

29.9

15.3

13

9.5

6.8

5

4.1

4.5

Source: https://www.indec.gob.ar/indec/web/Institucional-Indec-IndicadoresDemograficos.

in a regulation enacted by the Executive Branch (Decree 70 / 2017, hereafter D NU 70) that was in force from 2017 until March 2021, when it was repealed by Decree 138 / 2021. Lastly, the Covid-19 pandemic and the imposed social quarantine (declared at the end of March 2020 and, to different degrees, still in force by 2021) revealed some structural issues that are still unresolved for migrant communities, among them, obstacles to documentation access, informal and precarious jobs, and lack of suitable housing.

2 M ig r at io n S tat is t i cs and Contexts Historically, Argentina has been shaped by international migration. The greatest waves of immigration took place before the Second World War, with the number of immigrants reaching a peak in 1914, representing 30 per cent of the total population (see table 1.1). Meanwhile, cross-border migration, which has been taking place in the Argentine territory since before the formation of the state, has come from the borderlands, where commercial activities are common on both sides of the border. Throughout Argentine history, this immigration has represented between 2 and 3 per cent of the total national population, even though its relative importance varied, from the predominance of Uruguayans at the beginning of the twentieth century (at which time the population of migrants from bordering countries reached a total of 200,000 people), to a majority of Paraguayans and Bolivians at the beginning of the new millennium. Table 1.2 presents the relative weight of these populations. At the end of the twentieth century, state-sponsored racism resulted in migration being treated as a problem, especially for immigrants coming from bordering countries. In part, this was due to the increase of migrants in Argentine urban centres, as well as to the social transformations that it wrought, linked to the perception of migrants’ difference as negative (see table 1.3).

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Table 1.2 Total population and foreign population according to origin, 1869–2010 Census year

Total population

Foreign population not from bordering countries

Foreign population from bordering countries

1869 1895 1914 1947 1960 1970 1980 1991 2001 2010

1,737,076 3,954,911 7,885,237 15,893.827 20,010,539 23,390,050 27,947,447 32,615,528 36,260,130 40,117,096

168,970 890,946 2,184,469 2,122,663 2,137,187 1,676,550 1,149,731 811,032 608,695 403,389

41,360 115,892 206,701 313,264 467,260 533,850 761,989* 833,367* 1,010,761* 1,402,568*

* Foreigners from Peru are included. Figures from previous years only included foreigners from bordering countries. Source: https://www.indec.gob.ar/indec/web/Institucional-Indec-IndicadoresDemograficos.

As can be observed in the previous tables, according to the 2010 census, people coming from the Americas total 1,470,000. Of these, 1,400,000 (95 per cent) come from Bolivia, Brazil, Chile, Paraguay, Peru, and Uruguay. A total of 70,000 come from Colombia, the Dominican Republic, Ecuador, Haiti, Mexico, Venezuela, among others. While their numbers are fewer, their visibility in a range of areas is substantial. For example, in recent years, many professionals have settled in Buenos Aires, the country’s capital city, to take part in internships or enroll in postgraduate studies in a range of disciplines, such as medicine, law, and economics. Also, the number of students from Colombia, Ecuador, and Venezuela in private and public higher education institutions has grown. In particular, in the last few years, Argentina has received a substantial number of Venezuelan migrants. By mid-2018, total figures had grown by 208 per cent, in relation to the previous year,7 meaning that according to other sources it surpassed other migration waves from Paraguay and Bolivia, which had been the most significant in preceding decades.8 Today, Argentina is home to around 200,000 Venezuelans, who do not need a special visa to enter the country, out of a total of 4.8 ­million Venezuelan immigrants, mainly hosted by Colombia, Peru, and Ecuador.9

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6,194 5,919 10,883 3,288 15,076 s/d 41,360

Bolivia Brazil Chile Paraguay Uruguay Peru Total immigration

7,361 24,725 20,594 14,562 48,650 551 115,892

1895 18,256 36,629 34,568 28,592 88,656 1,247 206,701

1914 47,774 47,039 51,563 93,248 73,640 2,760 313,264

1947 89,155 48,737 118,165 155,269 55,934 s/d 467,260

1960 92,300 45,100 133,150 212,200 51,100 s/d 533,850

1970 118,141 42,757 215,623 262,799 114,108 8,561 761,989

1980

2001

143,569 233,464 33,476 34,712 244,410 212,429 250,450 325,046 133.453 117,564 15,939 87,546 857,636* 1,010,761

1991

345,272 41,330 191,147 550,713 116,592 157,514 1,402,568

2010

* The total value includes migrants from bordering countries, but the country of origin is unknown. Therefore, this number is slightly greater than the sum of the values per country of origin. Source: https://www.indec.gob.ar/indec/web/Institucional-Indec-IndicadoresDemograficos.

1869

Country of birth

Table 1.3 Evolution of Latin American immigration, 1869–2010

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3 C u r r e n t L e g is l at io n on I mmi grati on, A sy l u m , a n d N ati onali ty The general rules that regulate immigration and nationality, including migration and asylum and refugee applications, are framed internationally, constitutionally, and nationally. Internationally, Argentina is part of the main treaties on human rights, such as the International Covenant on Civil and Political Rights, the American Convention on Human Rights, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (CRMW), as well as other international instruments, such as the Vienna Convention on Diplomatic Relations.10 It is also part of the Convention Relating to the Status of Refugees,11 and its special protocol,12 along with other international instruments, such as the Convention on the Reduction of Statelessness,13 and regional ones, like the Convention on Territorial Asylum.14 On national matters, some of these instruments have “supremacy,” following Article 75.22 of the Constitution,15 or have at least higher validity than national laws.16 This implies, among other things, that a law can be judicially questioned in case of contradicting dispositions provided by some of these instruments; in some instances, legislative changes have proceeded when cases have been contested. Following the liberal roots that inspired the 1853 Constitution, we find, on the level of this fundamental rule, that: (1) every “inhabitant” enjoys basic rights, including private property and criminal guarantees, and that (2) specific rights for “foreigners” are provided. Needless to say, as we have mentioned before, the ideals of the elites in the late 1800s pointed specifically to European migration, preferably Anglo-Saxon. On nationality, Article 20 of the National Constitution declares that foreigners “may obtain naturalization by residing two continuous years in the Nation, but the authorities may shorten this term in favor of anyone so requesting, upon their asserting and proving services to the Republic.” For legislation at the national or federal level, Law No. 346 of 1869 establishes nationality along with citizenship dispositions and access to naturalization for foreigners. In short, Law No. 346 echoes Article 20 of the Constitution, and specifies that a federal court intervention shall be required to naturalize migrants. Modifications to this law (the first took place a century later, in 1954) did not modify the essence of the legislation, but rather covered specific situations, such as the offspring of Argentineans in exile.

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On migration, we already introduced the legal framework for the 2004 ML , which recognizes migration as a human right, and other general rights, some of which are particularly sensitive for migrants, such as the right to family reunification or access to education and health, even for migrants with an irregular status. Current legislation establishes the National Directorate for Migration as the enforcing authority, which depends on the Ministry of the Interior, and provides specific roles for the judicial branch. Meanwhile, Law No. 26,165, which has been in effect since 2006, regulates the situation of refugees. Besides enacting parts of the Convention Relating to the Status of Refugees, the law recognizes that the category of “refugee” will also be applied to the recognitions provided by the 1984 Cartagena Declaration on Refugees.17 The law, in effect, also establishes the National Commission for Refugees (CONARE) – made up of the United Nations High Commissioner for Refugees (UNHCR) and a non-governmental organization (NGO) – as the enforcing authority Both have the right to voice, but not vote. This legal framework will be further detailed in the section on asylum and refugee regulations. Finally, in 2019, the federal congress passed a law on statelessness, Law No. 27,512, which recognizes specific rights for stateless persons (such as the right to family reunification or to be granted national documentation) and the importance of the non-refoulement principle.

4 R e c o g n it io n o f F orei gners’ Ri ghts Foreigners’ rights were recognized at an early stage during Argentina’s formation as a nation. As mentioned earlier, the 1853 Constitution granted general rights to all “inhabitants” and explicit rights to foreigners. Inhabitants were granted basic rights,18 such as private property19 and criminal guarantees.20 For foreigners, Article 20 of the 1853 Constitution, which is still in effect, recognizes that, “Foreigners enjoy within the territory of the Nation all the civil rights of citizens; they may exercise their industry, trade and profession; own real property, buy and sell it; navigate the rivers and coasts; practice freely their religion; make wills and marry under the laws. They are not obliged to accept citizenship or pay extraordinary compulsory taxes. They may obtain naturalization papers residing two uninterrupted years in the Nation; but the authorities may shorten this term in favor of those so requesting it, alleging and proving services rendered to the

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Republic.”21 The European immigrant, a predominant narrative of, and strategy for, promoting the immigration of white people,22 embodied the underlying idea of immigration for the “Generation of the Eighties,” which had a high cost in terms of the development of migration in Argentina, since it invisibilized regional migration. Thus, the 1853 constitution explicitly provided that the “Federal Government shall encourage European immigration.”23 While these rights have been in effect since the nineteenth century, the reference to “the laws that regulate their exercise” had more importance for foreigners. In fact, Article 14 of the 1853 Constitution states, for example, that “all the inhabitants of the Nation are entitled to the following rights, in accordance with the laws that regulate their exercise, namely: to work and perform any lawful industry; to navigate and trade; to petition the authorities; to enter, remain in, travel through, and leave the Argentine territory.” The subsequent laws regulating entrance or access to residence ended up restricting migrants ability to exercise their rights in such a way that the law interceded (especially after several courts’ interpretations) between “inhabitants” in general (a wider concept than only “foreigners” or migrants, if we reference the national constitution) and their particular rights. In this sense, the main contribution of Law No. 25,871 is that it positions migrants as subjects of rights (even recognizing their right to migrate) and, at the same time, recognizes that migrants also have specific rights. While changes in legal matters do not always bring transformations in everyday practice, the ML places immigrants as subjects with a group of rights that they had not previously enjoyed. In this respect, it can be said that the legislation attempts to transform social reality on the basis of recognizing migrants’ rights and processes. Thus, it recognizes that: “The state in all its jurisdictions, will guarantee equal treatment to the immigrant and his family in the same conditions of ­protection, support and rights of the nationals, particularly in terms of social services, public property, health, education, justice, work, employment and social security.” 24 In particular, the law recognizes especially sensitive matters for migrants, even including people with irregular status, such as the right to family reunification,25 and access to education26 and health.27 Specifically, in relation to family reunification, Article 10 states that the Ministry of the Interior, via the National Directorate for Migration, as well

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as other responsible organisms, shall adopt the necessary ­measures to ensure the exercise of rights of family reunification with the specifications stated in the present law and Article 44 of the CRMW, which was approved by Law No. 26,202. Also, in order to protect the principles of unity, support, and family reunification, the National Directorate for Migration shall grant temporary residence to relatives of immigrants with the same status, specifically to spouses, parents, or single children with the status of minors, who are not yet emancipated, or children over the age of 18 with a mental or physical handicap. Even though it is not explicitly stated in the text, it is understood that the exercise of the right to family reunification, including “no family separation,” is enjoyed regardless of one’s immigrant status due to the pro persona principle. Actually, many rights (work, freedom of religion, freedom of movement, right to petition) are recognized for foreigners insofar as “inhabitants” by virtue of constitutional dispositions and reaffirmed in different iterations in internal legislation, such as access to justice and work, while others are directly specified in internal rules, such as the right to health or education, independent of one’s migration status.28 Similarly, the current legislation clarified the duties of the Argentine state to the political rights of foreign nationals, albeit with limitations. When the 1853 Constitution establishes that foreigners enjoy within the territory of the Nation “all of the civil rights attributed to citizens,” it is worth pointing out that “citizen” implies not only access to all civil rights, but also to political rights. In relation to nationality, the legislation on citizenship and naturalization29 establishes, in its Title I, jus soli (the right to nationality and citizenship granted to anyone born in the territory of a state) as the main principle through which to acquire Argentinian nationality. Also, Title II, on citizenship through naturalization, establishes that those who can be naturalized citizens are foreign nationals older than 18 years of age, who have resided in the Republic for two consecutive years, and have expressed before federal judges their desire to become a naturalized citizen. However, the ML recognizes political rights to a lesser extent by establishing that: “[T]he Argentine Republic will facilitate, in accordance with national and provincial legislation on the matter, the consultation with, or participation of, foreigners in the decisions regarding

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public life and administration of the local communities where they reside.”30 The above-mentioned means that foreigners ­cannot vote on national elections (to elect national deputies and senators, president, and vice-president), although they can do so in provinces that have laws that allow it. Therefore, in the Argentinian model, the recognition of the right to vote in local elections is decentralized and depends on the provinces, which, in turn, can allow foreigners the right to vote via specific legislation. This has been the case in the provinces of Buenos Aires, the City”of Buenos Aires, Catamarca, Chaco, Chubut, Cordoba, Corrientes, Entre Ríos, Jujuy, San Juan, San Luis, Santa Cruz, Santiago del Estero, Tierra del Fuego, and Tucuman. In practice, however, in order to be able to vote in these provinces, foreigners need to have a National Identity Document, which requires ­temporary or p ­ ermanent residence.31

5 Residence and Migrant Labour Regulations Up until 2004, a deep link existed between work and residence, where having work was a requirement to achieving legal residence. In fact, migration was not only linked, but also understood, in relation to work. Immigrants were thus defined via Article  45 of the 1876 Avellaneda Law, not only in terms of their origin, but also in regard to their profession.32 Consequently, their rights to residence and to be maintained by the state during the first five days after their arrival were recognized. The state was also responsible for covering the transportation costs to the place inside the country in which the foreigner chose to settle. In the subsequent regulations (Videla Law), an employment contract was practically the only way someone could access regular residence, but, paradoxically, a regular residence was required to be formally hired. It was not until 2004, concurrent to MERCOSUR discussions, when Argentina played a very active role in migration matters, that a separation between residence and work took place, and the category of “nationality” appeared. Such a criterion allows nationals and long-term residents from any of the states in MERCOSUR to be granted legal residence, regardless of whether they have an employment contract, academic study, or family ties. 33 However, the situation remains the same for persons from other

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countries (“non-M E R C O S U R ” countries), in which case residence still depends on the existence, or proof, of an employment contract, academic study, family ties, etc. For labour issues, Law No. 25,871 includes the status of both migrant workers34 and temporary workers.35 A relevant discussion in non-M E R C O S U R countries concerns workers’ autonomy from, or  dependence on, an employer. While the current M L refers to an employment relation, wherein a worker qualifies if they have an employer, is not self-employed, Argentina has ratified and approved the C R MW (The International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families), via Law No. 26,202, which establishes in broad terms that “‘migrant worker’ refers to a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a state of which he or she is not a national.”36 Moreover, Decree 616 / 2010, which regulates Law No. 25,871, clearly states that the category of “migrant worker” is defined and conditioned by the CRMW.37 However, in practice, the only category of worker accepted by the National Directorate for Migration is characterized by a relation of dependency: autonomous workers, registered or not, cannot access worker residency status. This de facto exclusion is one of the main issues raised by immigrant organizations in Argentina and one of the main concerns discussed between the National Directorate for Migration and civil society in statesponsored dialogue.38 Likewise, the current regulation established a National Registry of Petitioners on behalf of Foreign Applicants (RENURE). Anyone who wishes to invite, or wants to sponsor, foreign nationals for work purposes, whether within or outside the MERCOSUR framework, not only needs to be part of the registry, but must also explain the reasons for petitioning such a contract, with many other discouraging requirements, such as statements of financial conditions and of taxes. Even when a foreign national personally presents an employment contract, the National Directorate for Migration tends to intimidate that person’s employer into enrolling in the registry and presenting a series of documents about the company. Last, we mentioned that some conflicts arise when the migrant worker decides to change employers. For example, in many cases, a person has presented documentation for a specific contract in a particular place, yet, when inspectors visit the listed workplace and do not find the worker there, they have cancelled the worker’s residency,

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even though the worker had documented that they were working elsewhere. As of 2015, these cases did not lead to effective deportation, but, rather, to irregular residence. Also, as pointed out above, individuals with irregular status supposedly have the same rights as those in a regular situation, either due to their “inhabitant” status, by constitutional dispositions, or by specific regulations stated in the ML . In this sense, Argentine dispositions go beyond the standards laid out by the CRM W . However, in practice, the lack of a national identification document tends to be an obstacle in accessing some rights. Many reports have pointed out the difficulties that migrants face in trying to access health care (since, for example, the practice of asking for national identification is very ­common in hospitals) and for education (for instance, identification is needed to be granted a degree), among others. In sum, there are many “communities of practice” that prevent the actual access to rights that are guaranteed by the national law and by regulations of the same, or inferior, rank. An example of the latter is teacher status in the province of Buenos Aires: even though many judicial cases have stated that it is unconstitutional for teachers to be required to hold Argentine citizenship, teacher status has not been modified. As a result, every foreign national who would like to work as a teacher must, almost always, go to court.

6 R e g u l at io n s f o r Expuls i ons Recognizing the right to migrate that is included in the current legislation did not imply reducing the faculties of the state to carry out expulsions. In practice, they both co-exist in, for example, what we called the “grounds for exclusion,” a generic term that includes obstacles for entry, denial, or cancellation of residence, and, of course, expulsion or deportation,39 which had been, in part, inherited from the Videla Law. These exclusions, however, tend to consider the right to migrate as an exception, rather than a principle: in fact, any of these instances (denial of entrance or residence, cancellation of residence, detention, expulsion, etc.) have their own set of exceptions, for family reunification or humanitarian reasons. These waivers are mainly decided by the National Directorate for Migration, but may be challenged before the judiciary. Orders of expulsion, as well as cancellations of residence, are issued by the National Directorate for Migration, either due to purely administrative causes following a requirement

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being breached or the charging of a crime. For example, and pursuant to the wording (and spirit) of the law, there is a minimum threshold for a removal based on crimes: sanctions under three (3) years of prison were not enough to deny a residency, and a minimum of a five (5)-year sanction was required to cancel a residence that had already been granted.40 These cases may be challenged via administrative and judicial means, and are suspended while the case is pending before a court. Similarly, in certain cases, the judiciary should automatically review a cancellation of residence.41 Such a case takes place when a foreigner meets some of the requirements (long-term resident, family ties, etc.), but in reality, this section has not been applied and the National Directorate for Migration deals with all cancellations of residence equally. On the other hand, an order of “retention” (detention with the purpose of expulsion) could only have been issued if the administrative order was firmly declared with full consent. The judiciary is also the only competent authority to issue such a detention: the federal administrative courts, in most cases, and the criminal courts in case the expulsion is criminal. In fact, the 2004 ML had granted, in cases of expulsions based on criminal records, the judicial branch unprecedented power to intervene in migration policy. The judiciary was thus called to establish a balance between the right to migrate and the state’s power to exclude migrants. The judiciary has a double role: (1) as a guarantor of general rights, which involves many judiciary powers and jurisdictions (labour, civil, commercial, etc.), which will be seen in the section on the role of the courts; (2) as a player in migration policy in a strict sense (migration control), which, from a migrant’s perspective, deals with mobility rights (entry, circulation, residence, exit, etc.) – a core aspect of the human right to migrate. As an agent of migration control, the judiciary has two main obligations by virtue of Law No. 25,871. First, it authorizes certain acts, such as the detention of a migrant whose expulsion has already been issued.42 Second, it reviews the performance of the National Directorate for Migration after administrative claims have already been exhausted. The following are all challenged decisions: denial of admission or permanence for a foreign national; the cancellation of authorization for permanent, temporary, or transitory residence; the order for a foreign national to leave the country or an order of deportation; and fines and cautions, or their execution.43 The judiciary also acts in case of administrative delay. In practice, the performance of the

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judiciary has favoured state faculties rather than the rights of migrants. Only the actions of civil organizations and the Public Defender’s Office (in Argentina, the Commission for Refugees and Migrants, which is part of the Public Ministry of Defense) have been able to (and only in some cases) reverse an order of deportation.44 Authorizing “retention” works automatically (it is limited to certify that the notification of deportation was issued, regardless of a proper due notice), with only “honourable” exceptions.45 In addition, as previously mentioned, the automatic judicial revision for cancellation of residence pursuant to the terms of Article 61 is non-existent. This is not due to a lack of people who fit the provisions of Article 61, but because the National Directorate for Migration did not deliver the case to the judiciary. However, it should be pointed out that, as of December 2015, expulsions were relatively uncommon. In fact, overruling through administrative means was a much more common practice, i.e., through the set of exceptions given for family reunification or for humanitarian reasons. That brings other sorts of problems, such as an increasing number of orders of deportations not executed, which leave foreign nationals in endless legal limbo, because orders of expulsion are not issued with an expiration date, but it was a better system than the one in place during the last years before December 2018. More specifically, since D N U 70 came into force,46 deportation orders, as well as the rate of execution of deportation, have grown considerably.47 After the ML was enacted, some judicial judgments have made a difference, as a result of civil society actors and the Public Defender’s Office collaborating. In the 2015 Zoyla Cristina Barrios Rojas v. Argentina court case, the Federal Court of Appeals ruled that a foreigner subject to deportation due to criminal reasons had the right to live in the country: “In accordance with Articles 14 and 14b of the National Constitution, where it is expressed that all the inhabitants of the nation are entitled to the following rights in accordance with the laws that regulate their exercise, namely, to enter, remain in, travel through, and leave the Argentine territory.”48 The court applied a test of fairness between the human right of family reunification and the government’s right to deport a foreign national who has committed a crime. As a result, the judges declared the decision by which the administrative authority called the expulsion of a twenty-year-resident unreasonable.49 Thus, the court cancelled the deportation order. This judgment, together with the following

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ones, created the possibility for the right to migrate to become a reality and a principle, as it was originally established by the M L , not an exception, as has been implemented in practice.50 Unfortunately, the Supreme Court reversed this decision in 2020. In 2018, and by an initiative of the Public Defender’s Office, a Supreme Court ruling on the Pedro Roberto Apaza León v. Argentina case put an end to the decisions from the Immigration Board that ignored the minimum requirement of a three (3)-year conviction to  remove a foreigner.51 This judgment was important because the National Directorate for Migration, in spite of the provisions of the 2004 ML that called for a three-year criminal sanction to deny residence to foreigners and remove them, was actually expelling a migrant for having a criminal record, even for having committed a crime.

7 In t e g r at i on and A n t i- D is c r im in at i on Poli ci es The ML declares that the state will play an active role in favouring the integration of migrants by establishing, in Article 14, that: The state in all its jurisdictions, national, provincial or municipal, will favor the initiatives tending to the integration of foreigners in their communities of residence, especially focusing on: a) Carrying out the courses of Spanish language in legally recognized schools and foreign cultural institutions; b) The dissemination of useful information for the accurate insertion of foreigners in the Argentine society, particularly those related to rights and duties; c) The knowledge and the evaluation of the cultural, recreational, social, economic, and religious expressions of immigrants; d) The organization of training courses based on judgments of cohabitation in a multicultural society and the prevention of discriminatory behaviors, for managers and government employees and private entities.52 In reality, the teaching of Spanish referred to in 14.a has not been implemented as a public policy. Similarly, the lack of dissemination of information, as stated in 14.b, is one of the issues constantly brought up by migrant organizations, together with the lack of adequate training of public officials (14.d). Although events for cultural expression

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are organized by the state (14.c), in practice integration efforts are noticeably lacking in migration-related Argentine public policies.

8 A sy l u m a n d R e f u g e e Regulati ons Argentina has one of the highest refugee eligibility percentages in the world (along with Sweden and Canada), approving 37 per cent of submitted applications between 1985 and 2010. Between 1985 and 1990, Argentina granted refugee status to 42.92 per cent of all applicants, while between 2000 and 2010, it did so only for 27.40 per cent. Despite the decrease, this figure is still high, in comparison with policies applied in the United States and the European Union from 2001 to 2010.53 The makeup of Argentina’s refugee population has varied since 1985, a reflection of the armed conflicts and systematic human rights violations that have taken place around the world. During the 1980s, refugee status was granted mostly to Chilean applicants. In the 1990s, the majority of the refugees came from Algeria, Armenia, Cuba, Liberia, and Peru. In the first decade of the twenty-first century, after the attack on the Twin Towers in New York City on 11 September 2001, the doctrine of national security resurfaced, leading to refugee and migration policies being reinforced. These became much more restrictive both in the United States and in Europe, and influenced the arrival of people from countries on the west coast of Africa. This explains why there are refugees from Sierra Leone and Senegal; as well as from South American countries, such as Peru and Colombia; or European countries, such as Romania (only numerically important nationalities are noted). According to CO N ARE , from 2007 to 2011, the majority of refugees came from Armenia, Colombia, Côte d’Ivoire, Cuba, Ghana, and Haiti. In this context, Argentina ratified the 1951 Convention Relating to the Status of Refugees in 1961, and the Protocol Relating to the Status of Refugees in 1967, the same year it was drafted. The process of determining the status of refugees was carried out by the UNHCR until 1985, the year in which Argentina’s executive branch established a body focused on resolving refugee claims in, the Committee on Refugee Eligibility (CEPARE). This entity was created within the Ministry of the Interior–National Directorate for Migration division, whose normative framework was ruled by the 1951 Convention and the 1967 Protocol. However, the dynamics of new conflicts and situations brought about by forced displacement amid the context of the Cold War once

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again raised the necessity of responding to massive flows of refugees that the 1951 Convention, and its Protocol, had not foreseen. Thus, in 1984, some Latin American countries adopted the Cartagena Declaration on Refugees, after considering what had been established by the Organization of African Unity in 1969, which defined the term refugee based on the objective situation that had led to forced displacement. This definition included elements of international humanitarian law and international human rights law. Although Argentina had not participated when the expanded definition of the Cartagena Declaration was adopted, and even though it was a non-binding instrument, via Resolution No. 465 / 1998, CEPARE resolved to incorporate this definition of refugee from 1998 onwards. Law No. 26,165 was only passed at the end of 2006, repealing Decree 464 / 1985, and creating the National Commission for Refugees (C ON A R E ) within the jurisdiction of the Ministry of the Interior. An inter-ministerial collegiate body, C ON ARE ’s main functions include the decision to recognize refugee status throughout the national territory. This law also incorporated the refugee definition established by the 1951 Convention, and its 1967 protocol, as well as the refugee definition adopted by the 1984 Cartagena Declaration. Paragraphs a) and b) of Article 4 of Law No. 26,165 expressly state: For the purposes of this law, the term refugee shall apply to any person who: a) Due to well-founded fears of being persecuted for reasons of race, religion, nationality, belonging to a certain social group or political opinions, and is outside the country of their nationality and cannot or does not want to benefit from the protection of that country, or that, lacking nationality and being, as a result of such events, outside the country where before they had habitual residence, they cannot or does not want to return to it. b) They have fled their country of nationality or regular residence in which case they did not have nationality because their life, security or freedom have been threatened by widespread violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances that have seriously disrupted public order.54 Law No. 26,165 is a comprehensive piece of legislation that incorporates the high standards and good practices of international refugee law. For this reason, many countries in the region consider it

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a model law and have adopted related legislations. It is also innovative, since it incorporates principles, or elements, of other legal systems of the law. Article  7 stipulates that no refugee may be expelled, returned, or extradited to another state when there are well-founded reasons to believe that the right to life, liberty, and security of their person may be compromised, including the right not to be subjected to torture or other cruel, inhumane, or degrading treatment or punishment. The law thus seems to reflect a more evolved concept than that stipulated in Article  33 of the 1951 Convention, which admits exceptions for refugees who are considered, for well-founded reasons, a danger to the security of the country where they are located. Law No. 26,165 also states that the protection of refugees must be carried out in accordance to the principle – among others – of due process of law. With respect to CONARE, Article 25 of the law establishes that its functions include: 1) the protection of refugee rights to access the application process for the recognition of refugee status; 2) the assistance of refugees and their families; and 3) their inclusion in the country’s social and economic life. It also establishes that this entity will grant the applicant, and their accompanying family members, a provisional document that allows them to remain legally in the national territory and perform remunerated activities, as well as access to basic social, health, and education services and benefits. This document will be renewable until a final decision is reached on the application for recognizing refugee status.55 Finally, once refugees are officially recognized, they will have the right to obtain an identity document that allows them to fully exercise their civil, economic, social, and cultural rights, like any other foreign resident in the country.56

9 T h e R o l e o f t he Courts Above, we mentioned the two main functions of the judiciary regarding migration: as an actor in migration control, which has already been discussed, and as a general guarantor of (other) rights. The latter function is understood as an extension of the various rights that ­correspond to migrants (labour, family, etc.), where those with a foreign national status are not treated differently. The ML also specifically addressed the above-mentioned function when it discussed equal

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access to justice.57 The judiciary’s performance in areas other than migration control yields better results. In the field of education, the Argentine Supreme Court of Justice understood that, based on the Inés María Repetto v. Province of Buenos Aires58 case, the requirement of holding Argentine nationality to be allowed to teach, as established in the Teacher Bylaws, contravenes the constitutional equality principle between nationals and foreigners. Even though the Supreme Court ruling is not mandatory, subsequent jurisprudence has followed this line of logic. To a lesser extent, in the realm of education, the Federal Court of Civil Appeals of the City of Buenos Aires understood that, based on the Myriam Lezcano Arias v. Argentine School of Business (EAN ) case, the requirement to have a national I D , to issue a tertiary degree, is unreasonable, because it is not consistent with the rights recognized either in the 1853 Constitution or in the ML.59 Moreover, the court ruled that the respondent (a private university) failed in its duties established in Article 7, because it had the obligation to provide information about administrative paperwork to achieve legal residence, and, thus, a national I D.60 On social security, a regulation stipulates that foreigners must have accrued several years of residence (between twenty and forty) to access various pension programs, such as the elderly and disability pensions. Such a requirement is of course not requested for nationals. A particular situation covered by this topic was litigated by a civil organization (C E L S ) with a favourable ruling. In the Daniela Reyes Aguilera v. Argentina case, the Supreme Court declared that a 20-year residence requirement, which was imposed on a young disabled girl living in Argentina from an early age, was unreasonable and involved a disregard of the right to social security.61 In relation to labour rights, even before the passing of the ML, several Argentine courts have considered that the irregular residence of a worker does not affect any rights related to their employment. Regarding Argentine Labour Law No. 20,744, courts have ruled that “[its] application ... does not exempt the employer from fulfilling the obligations stipulated in labour legislation with respect to foreign nationals.”62 Likewise, in another subsequent case, it was stated that “the fact that the plaintiff does not have a national identity card while the relationship was developed does not justify the defendant to not have registered such relationship.” The same labour judges decided, in 2007, to order a company to pay compensation to an employee of Bolivian nationality who was in an irregular migration

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situation, stating that “the legal prohibition of hiring people with irregular status obliges the employer and its effects cannot affect the worker.”63 On family reunification, above we introduced the Zoyla Cristina Barrios Rojas v. Argentina case, in which the right to family reunification prevailed over the existence of a ground for expulsion. Many courts followed this criterion, even after the DNU 70 was issued, which established several obstacles to this sort of judicial decisions. Unfortunately, in September 2020, the Supreme Court of Justice reviewed the ruling by stating that the right to family reunification “is by no means absolute” and waivers given by the migration authority are “exceptional.” Thus, the administrative decision to remove a twenty-year resident migrant was not “unreasonable.”64

10 M E R C O S U R ’ s In f l u e nce on Mi grati on L e g is l at io n a n d Poli ci es Regional integration constitutes a complex process that involves a set of political, economic, cultural, and social phenomena for which states must reach agreements to define coordinated policies. The transit of people and the regulation of migration flows are part of the aspects to be addressed. MER C OSUR poses a completely different scenario compared with that of the European Union, particularly for institutional and political consolidation. It is also important to point out that the institutionalization of ME R C O SUR is not supranational, as is the European case, but is inter-state. Therefore, the borders are still in effect and there are no supranational political bodies; rather, states give their consent to each approved rule, which only become effective when they are internalized through national law. With the creation of MERCOSUR, several researchers have studied the changes that have taken place in the treatment of migration in the South American region. These studies coincide in emphasizing that since the 1990s, new actors have started to intervene in the migration debate, and in the definition of policies, thus establishing a growing similarity in political treatment between the national, regional, and international spaces.65 Since the 2000s, transformations in the understandings of migration have been associated with changes at the political level. This paved the way for an integration model different from that of the 1990s.

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This new model emphasizes Latin American integration as a regional political project and as a strategic alliance. In recent years, the different regional blocks of South America (MER C O SUR , C A N, Union of South American Nations [U N AS U R]) have tried to move in this direction. Specific concepts, such as free movement and regional citizenship, have dominated the proposals, although the objectives that these notions propose have not always been achieved. This process is accompanied by changes in migration policies at the local level. Argentina, as a forerunner, opened a discussion in 2003, followed by Uruguay, which also modified its regulations in 2008. Currently, Brazil, Chile, Ecuador, Paraguay, and Peru are debating the need to reform their immigration laws, and Paraguay to a lesser extent. These modifications allow us to account for the recognition at a regional level of the need to standardize the multilateral treatment of migration with policies historically associated with the internal administration of each state. The most outstanding elements of this process are found in a series of agreements emanating from the XII Meeting of Ministers of the Interior of MERCOSUR, Bolivia, and Chile in 2002. At this meeting, the Migration Regularization Agreement and the Agreement on Residence for Nationals of the States’ Parties of MERCOSUR were approved. This constitutes a qualitative change because the integration of the region begins from a perspective that “supports the condition of MERCOSUR citizens to guarantee legal residence in any of the countries that compose it,”66 and the concept of free circulation – now a mobility of settlement – is reiterated at the centre of the treatment of migration waves in discussions of integration. These rules show MERCOSUR’s political willingness to move toward the free movement of people within the bloc, but, probably because it was developed so recently, these advances tend to divide the migrant population and regulate the different mobility categories separately, as well as place excessive ­decision-making power in the hands of the states.67 Other advances in access to rights are the multilateral agreement on social security (2006) and the extended M E R C O S U R residence agreement (2009). These two examples express the citizen and labour struggles to include transnational mechanisms for the protection of workers.68 In this context, several instances of discussion and work have been created at the regional level. The 2003 Specialized Migration Forum (F E M ) is a space that works within the scope of the Meetings of

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Ministers of the Interior of MERCOSUR and associated states. It also studies the effect of migration in the region and beyond, and the discussion and development of draft rules and / or agreements on migration matters that will govern the countries of the bloc. According to experts, the FEM was the first space in the history of MERCOSUR to focus exclusively on treating this problem. One of the first documents launched by the FEM was the 2004 Santiago Declaration on Migration Principles, which reflects the spirit with which governments have committed themselves to addressing immigration policy. Another element of management that has emerged from the 10th South American Conference on Migration is the 2010 South American Human Development Plan for Migration. The guiding principles of the plan are: respect for migrants’ human rights; citizens’ exercise of freedom of movement; guarantee of full citizenship for migrants, which implies citizen participation, access to diverse social areas, and cultural participation; the national and regional coherence of migration policies; the recognition of the positive effects of migration; and the recognition of migrants as part of regional integration processes.69 The most ambitious elements, which have not yet been put into effect, are the draft decision for incorporating the South American Conference on Migration into the structure of U N AS U R, and establishing a road map that paves the way for the establishment of a South American citizenship.70 For Argentina, it is important to point out that, in the area of people’s movements, ME R C O SUR has become a fundamental space since, as we mentioned above, the majority of migrants that the country receives come from countries belonging to that bloc.

1 1 C o n c l u s i ons Argentina has a long tradition of being perceived as a country of immigration, and its 2004 legislation provides a promising framework for the rights of migrants. The country’s recognition of the right to migrate and of judicial guarantees that challenge the National Directorate for Migration, have positioned the country as a point of reference in the protection of the rights of migrants,71 in particular because it establishes a new point of departure for the recognition of these rights: it would no longer be a question about migration policy and human rights. Rather, human rights would displace state sovereignty as a central concern. In effect, in using its powers to define immigration policy,

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Argentina has shifted the priority of the “unquestionable right of the Nation to regulate the admission of persons,” as the Supreme Court declared in the middle of 1940,72 in favour of migrants. However, the 2004 legislation also brings a series of challenges that derive from the coexistence of the right to migrate with the state’s right to exclude, because a state’s judiciary is less inclined to privilege the rights of migrants over the decisions of the administration.73 Although the positive aspect of this law is clear, since it corresponds to the reality of the region, given that the majority of the population residing in Argentina come from MERCOSUR and its associated states, negative continuities persist in the laws’ integrationist tendencies, migration categories, and in its prioritizing of a type of population (using the criteria of migrant nationality). This leaves many migrants without the possibility of becoming subjects of rights, reinforcing hostile relations between the “national” and the “foreign.” Also, the 2017 amendments to the migration law in force between 2017 and 2021 merit a focused attention. In  January 2017, the National Executive Branch issued a decree aimed at modifying and repealing, to a large extent, the provisions of Law No. 25,871, and eliminating the established good practices that protect the rights of migrants. Rulings, such as “Barrios Rojas” or “Apaza León,” discussed above, are good examples of decisions the Immigration Board did not agree with. Similarly, modifications to the citizenship and naturalization law were included by establishing that the two-year residence required by the National Constitution to access Argentine nationality must be “regular,” that is, granted by the National Directorate for Migration. In sum, DNU 70 came into force to “solve” the tension, or balance, between rights and the state’s power. Although for space purposes we refer the reader to other publications,74 it should be noted that, in addition to the unconstitutionality involved in seeking to change a law through a lower-hierarchy regulation, such as a decree (otherwise, a unilateral act aimed at modifying a law achieved by the action and agreed by numerous civil organizations), the setback in rights that this last act implied is of the greatest concern. Even when the D NU 70 was repealed in March 2021 (by means of Decree 138 / 2021), it showed how fragile achievements in rights might be and that they still depend on political willingness. Also, the Covid-19 pandemic, as well as the period of social quarantine, have revealed at least three deep-seated weak points in this so-called human rights migration policy: documentation, work, and

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housing, particularly access to regular residence during the last few years and up until December 2019, under the ruling of a right-wing coalition. As a result, obtaining a national ID was particularly difficult. More specifically, when policies dealing with the socio-economic effects of the pandemic were implemented at the beginning of 2020, migrants soon discovered that a national ID, and a certain number of years of legal residence, were both requirements to achieve the benefits of such policies. Second, regardless of documentation or legal residence, informal and precarious work among daily wage migrants is still common practice. This group thus disproportionately suffers the consequences of the pandemic and social quarantine. Last, the housing issue remains, specifically: how to remain at home in social isolation when it is overcrowded and / or unhealthy to do so?

Not e s   1 David Cook Martín, “Proactive Recruitment and Retentionist Patterns of Migration and Nationality Policy in Argentina, Italy, and Spain (1850– 1919),” working paper, Department of Sociology, University of California, Los Angeles, CA, 2005, 6.   2 1853 National Constitution of Argentina, Art. 25, “The federal government will promote European immigration; and may not restrict, limit or tax with any entry into the Argentine territory of foreigners whose purpose is to work the land, improve industries, and introduce and teach science and the arts.”   3 Susana Novick, “Migración y políticas en Argentina: tres leyes para un país extenso (1876–2004),” in Las migraciones en América Latina. Políticas, culturas y estrategias, ed. Susana Novick (Buenos Aires: C L A C S O , 2008), 136.   4 Susana Novick, “Las políticas inmigratorias en su expresión jurídica. Una perspectiva secular,” Estudios Migratorios Latinoamericanos, no. 2 (1986); Nora Perez Vichich, “Las políticas migratorias en la legislación argentina. Y para todos los hombres del mundo,” Estudios Migratorios Latinoamericanos, no. 10 (1988); Susana Sassone, “Migraciones ilegales y amnistías en la Argentina,” Estudios Migratorios Latinoamericanos, nos. 6–7 (1987).   5 Violeta Correa, “La nueva ley de migraciones y la participación de las organizaciones de la sociedad civil,” in Migración, un derecho humano, ed. Ruben Giustiniani (Buenos Aires: Prometeo, 2004), 173–9; Maximo

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Badaró, “La conciencia y la ley: la cuestión migratoria en las prácticas de agencias estatales y organismos no gubernamentales en la Ciudad de Buenos Aires,” in Migraciones regionales hacia la Argentina. Diferencia, desigualdad y derechos, ed. Alejandro Grimson and Elizabeth Jelin (Buenos Aires: Prometeo, 2006), 207–36.   6 Migration Law, Art. 4.   7 O I M, Monitoreo de Flujo de Migración Venezolana: Argentina (Buenos Aires: O I M , 2018), http://argentina.iom.int/co/sites/default/files/ publicaciones/DTM%20FINAL%20FINAL%20.pdf.   8 Martín DiNatale, “En lo que va del año, los venezolanos pasaron a liderar la ola migratoria en la Argentina,” Infobae, 6 August 2018, https://www. infobae.com/politica/2018/08/06/en-lo-que-va-del-ano-los-venezolanos-pasarona-liderar-la-ola-migratoria-en-la-argentina.   9 A C NUR , “La cifra de personas refugiadas y migrantes venezolanas alcanza los 3 millones,” Newsletter, 8 November 2018, https://www.acnur.org/ noticias/press/2018/11/5be443b54/la-cifra-de-personas-refugiadas-einmigrantes-venezolanas-alcanza-los-3.html. 10 In effect in Argentina since 1963, via Decree-Law No. 7,672. 11 In effect in Argentina since 1962, via Law No. 15,869, Art. 2, modified by Law No. 23,160, 30 September 1984. 12 In effect in Argentina since 1967, via Law No. 17,468. 13 In effect in Argentina since 2014, via Law No. 26,960. 14 In effect in Argentina since 1993. Similarly, Argentina subscribed to other conventions on asylum in the Latin American context, such as the Conventions on Political Asylum (1993) and Territorial Asylum (1954), even though they never entered into force due to a lack of ratification. 15 1853 Constitution, Art. 75.22, the international instruments that enjoy constitutional hierarchy are listed, as well as the procedures for future instances: “The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the American Convention on Human Rights; the International Pact on Economic, Social and Cultural Rights; the International Pact on Civil and Political Rights and its ­empowering Protocol; the Convention on the Prevention and Punishment of Genocide; the International Convention on the Elimination of all Forms of Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination against Woman; the Convention against Torture and other Cruel, Inhuman or Degrading Treatments or Punishments; the Convention on the Rights of the Child; in the full force of their provisions, they have constitutional hierarchy, do no repeal any section of the First Part of this Constitution and are to be understood as complementing the

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rights and guarantees recognized herein. They shall only be denounced, in such event, by the National Executive Power after the approval of ­two-thirds of all the members of each House.” 16 1853 Constitution, Art. 75.22: “Treaties and concordats have a higher hierarchy than laws.” 17 Thus, the term “refugee” will be applied to all those “persons who have fled their country because their lives, security or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances, which have seriously disturbed public order.” 18 1853 Constitution, Art. 14: “All the inhabitants of the Nation are entitled to the following rights, in accordance with the laws that regulate their exercise, namely: to work and perform any lawful industry; to navigate and trade; to petition the authorities; to enter, remain in, travel through, and leave the Argentine territory; to publish their ideas through the press without previous censorship; to make use and dispose of their property; to associate for useful purposes; to profess freely their religion; to teach and to learn.” 19 1853 Constitution, Art. 17: “Property may not be violated, and no inhabitant of the Nation can be deprived of it except by virtue of a sentence based on law.” 20 1853 Constitution, Art. 18: “No inhabitant of the Nation may be punished without previous trial based on a law enacted before the act that gives rise to the process, nor tried by special committees, nor removed from the judges appointed by law before the act for which he is tried. Nobody may be compelled to testify against himself, nor be arrested except by virtue of a written warrant issued by a competent authority. The defence by trial of persons and rights may not be violated. The domicile may not be violated, as well as the written correspondence and private papers; and a law shall determine in which cases and for what reasons their search and occupation shall be allowed. Death penalty for political causes, any kind of tortures and whipping, are forever abolished.” 21 1853 Constitution, Art. 20. 22 Richard Gott, “América Latina como una sociedad de colonización blanca,” Estudios Avanzados 5, no. 8 (2007), 7–33. 23 1853 Constitution, Art. 25. 24 Law No. 25,871, Art. 6. 25 Law No. 25,871, Art. 10: “The State will guarantee the right of family reunification of the immigrants with their parents, spouse, minor single sons/daughters or eldest sons/daughter with handicaps.”

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26 Law No. 25,871, Art. 7: “In no case the migration irregularity of a foreigner will impede their admission as a student at an educational institution, even if it is public or a private one; national, provincial or municipal; ­primary, secondary, higher education or university. The authorities of the educational institutions must offer orientation and counseling regarding the corresponding proceedings in order to rectify the migration irregularity.” 27 Law No. 25,871, Art. 8: “In no case, the rights to health, social assistance and medical assistance will be denied or restricted if the foreigner requires them, no matter the migratory condition they have. The authorities of the medical institution must offer guidance and counseling regarding the corresponding proceedings for the purpose of rectifying the migration irregularity.” 28 Law No. 25,871, Art. 6. 29 Law No. 346, with modifications and complements introduced by the ­following: Rules N° 16,801, Law No. 21,795 (1978), Decree No. 3,213 (1984), Law No. 20,835, Law No. 23,059 (1984), Law No. 24,533 (1995), Resolution No. 20 (1996), Law No. 24,951 (1998), Decree No. 1,601 (2004), and Resolution No. 1,608 (2005). Decree 70/2017 drafted the last modification, which will be addressed below. 30 Law No. 25,871, Art. 11. Authors’ emphasis. 31 This document, which is usually confused with residence itself, is granted once temporary or permanent residence is approved (not precariously so), and only for the period that it has been issued. Physically, it is different from the one that is granted to nationals, to the point that the new version has a strip with the word “FOREI G N ” in big red characters. 32 Law No. 817, Art. 12. An immigrant is “any foreign day laborer, craftsman, industrialist, farmer or professor who, being less than 60 years of age and accrediting his morality and his aptitudes, arrived in the Republic to settle in it, in steamships or sailing, paying for second- or third-class tickets, or having the trip paid on behalf of the Nation, the provinces or private companies, protective of immigration and colonization.” 33 Law No. 817, Art. 23 – “All foreigners who, under the conditions established by the regulations, enter the country in the following subcategories will be considered “temporary residents:” … l) Nationality: Native citizens of States Parties of M ERCOS U R, Chile, and Bolivia, with authorization to remain in the country for two (2) years, extendable with multiple entries and exits”; Provision No. 29,929/2004 of the National Directorate for Migration BO 21/9/2004, Art. 1 – It is considered that the detail of countries included in this subsection is merely illustrative, and should be considered in relation to all the States Parties and Associates of MER C OSUR .

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34 Law No. 25,871, Art. 23. – “All foreigners who, under the conditions established by the regulations, enter the country in the following subcategories will be considered “Foreign residents:” a) Migrant worker: who enters the country to engage in the exercise of any lawful activity, remunerated, with authorization to remain in the country for a maximum of three (3) years, extendable, with multiple entrances and exits, with permission to work under a dependency relationship.” 35 Law No. 25,871, Art. 24. – “Foreigners who enter the country as “residents in transition” may be admitted in some of the following subcategories: […] e) Temporary migrant workers”; Decree 616/2010 – “[T]emporary migrant workers [are] those who enter for the purpose of carrying out work that, by its very nature, depends on temporary conditions and only takes place during part of the year, with a deadline of permanence of up to three (3) months extendable for another similar period.” 36 Law No. 26, 202, Art. 2. 37 Decree 616/2010, Article 23a. 38 Provision 3,028/2014 formalized the Migration Bargaining Table (“Mesa de Diálogo Migratorio” in Spanish) defined as an “inclusive, transparent, and democratic participation mechanism with civil organizations in discussions related to public policies on immigration matters within the framework of Law No. 25,871, and its regulations, and international human rights treaties.” 39 In current regulations, the deportation of a foreign national is articulated around what are called “impeding causes” or “cancellation of residence.” The first are mostly to deny entry or residence (Law No. 25,871, Art. 29), and, the second, to cancel residence (Art. 62). These are ultimately articulated around criminal and administrative matters (crime charges and also, income per place or unauthorized schedule), and the transition between one regime and the other (presentation of false documentation); Lila García, “Práctica y discurso de los operadores judiciales en sus decisiones de control migratorio: el caso de la justicia administrativa federal en la Ciudad de Buenos Aires,” Estudios Socio-Jurídicos 18, no. 1 (2016): 79–104. 40 Between January 2017 and March 2020, and by means of DNU 70, such a threshold was abrogated. Consequently, any criminal sanction was sufficient to deny entrance, to cancel the residence or to remove a person. In addition, and among other things, DN U 70 expanded the scope of criminal reasons to exclude a migrant (by eliminating the aforementioned thresholds, it shortened trial periods to hours, and attempted to limit the power of the judiciary to revise the performance of the National Directorate for Migration.

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41 Law No. 25,871, Art. 61. 42 Law No. 25,871, Art. 61: “When the irregularity of foreigners’ stay in the country is confirmed, and considering the circumstances of their profession, their relationship with a national Argentine, the specified term of stay, and other social and personal conditions, the National Directorate for Migration will have to instruct them in order to regularize their situation in a fixed amount of time, limited for that purpose, in order to decide their expulsion. When the fixed term has expired and the situation is not solved, the National Directorate for Migration will decide the expulsion with suspensory effect, and will ask the participation and will also be a party before the judge, or court, with jurisdiction over the subject matter of the case, regarding the revision of the administrative decision of expulsion.” 43 Law No. 25,871, Art. 74.: “Against the decisions of the National Directorate for Migration with a definitive character, or which totally prevent the proceedings of claim or demand of the interested person and the speakers, of just a formality, that injury subjective rights or a legitimate interest, in these cases, there will be a revision at administrative and judicial offices, when: a) The admission or the stay of a foreigner is refused; b) The authorization of permanent, temporary or transitory is cancelled; c) The foreigner is warned to leave the country or his expulsion is ordered; d) There is a decision of the implementation or execution of fines and securities is decided or its execution.” 44 These statements are based on the results of García’s doctoral thesis carried out in the federal courts of the City of Buenos Aires. Although the massive number of cases in said jurisdiction could be considered quite ¿representative at the country-level, there are exceptions; for example, the Federal Chamber of Paraná, alongside the late Judge G. Chausovsky, have carried forward an auspicious jurisprudence on the rights of migrants; Lila García, “Nueva política migratoria argentina y derechos de la movilidad. Implementacion y desafios de una política basada en derechos humanos a través de las acciones ante el poder judicial” (PhD diss., Universidad de Buenos Aires, 2013). 45 Lila García, “Políticas de migracion y Poder Judicial. Respuestas judiciales a los pedidos de Direccion Nacional de Migraciones de detención a los fines de expulsión: Fast track y heróicas minorias,” in I Jornadas Interdisciplinarias de Jóvenes Investigadores en Ciencias Sociales (Buenos Aires: UNSAM, 2013), 1–12. 46 Lila García, “Control migratorio en la Argentina reciente. Efectos de la modificación a la Ley de Migraciones a través de las acciones presentadas ante el Poder Judicial federal,” Academia y Crítica, no. 2 (2018): 86–113.

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47 As of August 2020, expulsion orders have been suspended due to the ongoing pandemic. 48 Zoyla Cristina Barrios Rojas v. Argentina, 2015. 49 Federal Court of Appeals Ruling. 50 Unfortunately, between 2017 and 2021, DNU 70 came to limit the positive aspects of the judicial intervention by stating that judges can no longer review orders of deportation on the basis of family reunification. In addition, administrative claims have been considerably reduced, either in terms of remedies or time. For example, the current period for submitting a file before the judiciary, after exhausting administrative claims, has changed from thirty to three days. The DN U 70 was abrogated in March 2021. 51 Supreme Court of Justice, Ruling No. 39,845/09, 8 May 2018. 52 Law No. 25,871, Art. 14. 53 María Paula A. Cicogna (2012), “Solicitantes de refugio y refugiados en la Argentina: ayer y hoy,” Revista Voces en el Fénix, no. 21 (2012), https:// www.vocesenelfenix.com/sites/default/files/pdf/08_8.pdf. 54 Jorge A. Alvarez Nievas, Juliana Bello, and María J. Marcogliese, “El reconocimiento de la condición de refugiado en Argentina: Estandares de protección a la luz de la ley 26.165,” Temas de Antropología y Migración, no. 4 (2012): 61. 55 Law No. 26,165, Art. 51. 56 Law No. 26,165, Art. 52. 57 Law No. 25,871, Art. 6. 58 Supreme Court of Justice, Ruling No. 311/2,272, 8 November 1988. 59 Federal Court of Civil Appeals, Ruling No. 115.152/2001, 8 September 2010 60 In Argentina, any foreign person with temporary or permanent residence is entitled to a national ID, which is called Documento Nacional de Identidad (DN I ). 61 Supreme Court of Justice, 4 September 2007. 62 Federal Court of Labor Appeals Ruling, 28 April 1999, De Aguiar, Marinete v. Mix Cream S.A. 63 I D ( H ) E A S-CELS -U N La, Jurisprudencia sobre los derechos de las personas migrantes en América Latina y el Caribe, (Buenos Aires: Centro de Derechos Humanos de la Universidad Nacional de Lanús (UNLA ) y el Centro de Estudios Legales y Sociales (CELS), 2012), http://imumi.org/ attachments/2015/jurisprudencia.pdf. 64 Supreme Court of Justice of the Argentine Nation, Ruling in Zoyla Cristina Barrios Rojas v. Argentina, DNM Resolution 561/11 (exp. 2091169/06 (805462/95)) y otro s/ recurso directo para juzgados, 24 September 2020.

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65 Eduardo Domenech, “La agenda política sobre migraciones en América del sur: el caso de la Argentina,” Revue Européenne des Migrations Internacionales, no. 23 (2007). 66 Alicia Maguid, “Los movimientos migratorios: determinantes y consecuencias. Tipos de migrantes y fuentes de datos” (Internal Report, Especialización y Maestría en Demografía Social, Universidad Nacional de Luján, 2007). 67 Orlando Aguirre, Gabriela Mera, and Lucila Nejamkis, “Migrantes y ciudadanos. Avances y contradicciones del MER C OSUR ,” in XXVI Congreso de la Asociación Latinoamericana de Sociología (ALAS ) (Guadalajara, Mexico: A LAS , 13–18 August 2007), 1–20, http://www.derechoshumanos. unlp.edu.ar/assets/files/documentos/migrantes-y-ciudadanos-avances-ycontradicciones-del-mercosur.pdf. 68 Lenin Mondol López, “Políticas públicas migratorias: consideraciones preliminares para su discusión,” in Estado actual y perspectivas de las políticas migratorias en el MERCOSUR , eds. Cristina Zurbriggen and Lenin Mondol López (Montevideo: FLACSO, 2010). 69 Jorge Martínez Pizarro, Migración internacional en América Latina y el Caribe Nuevas tendencias, nuevos enfoques (Santiago de Chile: Comisión Económica para América Latina y el Caribe (C EPA L), 2011). 70 UNA S UR and CJEG , Ruling No. 8, 2012. 71 Barbara Hines, “The Right to Migrate as a Human Right: The Current Argentine Immigration Law,” Cornell International Law Journal 43, no. 3 (2010). 72 Argentina-CS JN , Sentence No. 200:99, considering 2. 73 García, “Práctica y discurso de los operadores judiciales.” 74 Lila García and Lucila Nejamkis, “Regulación migratoria en la Argentina actual: del “modelo” regional al recorte de derechos,” Autoctonía. Revista de Ciencias Sociales e Historia 2, no. 2 (2018); Lila García, “Argentina’s Migration Law: Changes Challenging the Human Right to Migrate,” Border Criminologies (blog), 2017, https://www.law.ox.ac.uk/researchsubject-groups/centre-criminology/centreborder-criminologies/blog/2017/ 09/argentinas.

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2 Advances and Setbacks in Brazilian Migration Policy and Legislation J o s é A n t ô n i o P er es G ediel a n d   S o l e d a d C a stillo Ja r a 1 In t ro du c t io n : R eflecti ons o n Im m ig r at ion Law Starting with the colonial conquest in 1500, Brazilian society was shaped by two large migratory flows: first, European migration, impelled by the search for wealth in the face of economic crises and wars in Europe; and second, African migration, a result of the slave trade, which remained active in Brazil until the end of the nineteenth century. In both cases, migration was motivated by the economic distress of the population, as well as by the need for labour for agriculture and exports, since Brazil’s Indigenous peoples had resisted domination and slavery. During the colonial period, European immigration was mainly of Iberian origin. Between 1500 and 1700, approximately 700,000 Portuguese left Portugal to settle in territories of the Portuguese empire in the Americas, Africa, or Asia.1 However, at that time, Portuguese America was economically unappealing, since profit was mainly related to sugar production and required large investments. In fact, it is estimated that only 100,000 Portuguese entered Brazil at that time.2 It was not until the seventeenth and early eighteenth centuries that Portuguese America became an immigration target for wealth accumulation, when gold was discovered in the state of Minas Gerais and, later, in Goiás and Mato Grosso.3 The Spanish presence, at the same time, had a greater impact than commonly believed, since it was

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concentrated in the extreme south of what was to become Brazil, and had played an important role between the late sixteenth and midseventeenth centuries.4 In the Americas, the Brazilian territory imported the most African enslaved people.5 Throughout the more than 300 years of the transatlantic slave trade, between the sixteenth and nineteenth centuries, about 4 million African men, women, and children were abducted and forcefully brought into the country, representing one-third of the total number of victims of this economic activity.6 The end of this forced migration of Africans was first achieved through the Law of 1850, in which measures to repress the trafficking of Africans7 were established, and, subsequently, through the Law of 1888, which abolished the practice of slavery.8 Brazil then went on to establish a migration policy that stimulated and facilitated the entry of European workers from mostly economically depressed regions, to partially replace the African workforce in rural areas.9 Its late-nineteenth-century migration policy actively encouraged European immigration, while restricting other groups. By the nineteenth century, the Brazilian Institute of Geography and Statistics had data on the arrival of Europeans from Portugal, Spain, Germany, and Italy. We can affirm that this migration was influenced by, on the one hand, the social, economic, and political changes that had occurred in Europe, as a result of industrialization, and on the other hand, labour demand and the discovery of natural wealth, such as gold, in the Brazilian territory. After a brief period of a wealthy and educated elite arriving (approximately 10,000 to 15,000 Portuguese elites arrived in Brazil between 1808 and 1817), a massive immigration movement of poor people took place, mainly small rural landlords hindered by the growing modernization of agricultural production.10 Among them, the presence of women and children stands out. By the middle of the century, children under the age of fourteen, mostly orphaned or abandoned, accounted for approximately 20 per cent of Portuguese immigrants in Brazil.11 Similar to the Portuguese, Spaniards immigrated to Brazil as workers, comprising the third largest contingent of immigrants after the Portuguese and the Italians. Unlike in the colonial era, they came from Galicia, rather than Castile.12 It is difficult, however, to establish the exact number of Spaniards who immigrated to Brazil. Aside from the lack of registration in Brazilian ports, there were added problems because of the seasonal, even clandestine, nature of Spanish

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migration. In some cases, the return rate could reach 50 per cent, and it was very common for Spaniards and Italians to work in Brazil only in October and November, the harvest season for wheat, fruit, and coffee.13 As a result, estimates show that, between 1820 and 1890, there were about 40,000 to 140,000 Spaniards in Brazil, and, between 1891 and 1900, about 140,000 to 160,000.14 Italian and German migration are deeply linked to the national unification wars that took place in these territories during the nineteenth century, when they displaced the rural and poor population. The Franco-Prussian War, for example, played a crucial role in the German case.15 It is estimated that, between 1824 and 1899, 78,509 Germans arrived in Brazil and settled mainly in the south and southeast of the country. Yet, this figure is not completely accurate because it only looks at German speakers whose origin does not necessarily correspond to the exact territorial limits of the newly created German state.16 As for the Italians, entire families were also displaced as a result of the wars. During the period of the “great migration,” between 1870 and 1890, Italians represented 42 per cent of the total number of immigrants. Thus, not only was the Italian community in Brazil quite numerous, but Italians also influenced public policies that aimed to attract migrants. The white, educated migrant, native to the north of Italy, thus became the prototype of a desired, productive, and easily assimilated migrant.17 The relative economic improvement of European regions, along with the economic crisis that affected China and Japan in the late nineteenth century, shifted the profile of the immigrants who arrived in Brazil. A new period of migration policy began, focused on admitting Asian workers on the same basis as European workers.18 However, this shift also introduced a debate about the differences between Brazilian and Asian cultures, highlighting the negative aspects of receiving immigrants who were so dissimilar to the local population. This was the pre-eminent argument used to favour admitting white workers.19 The period of migratory encouragement that characterized the nineteenth century came to an end at the beginning of the twentieth century. Several factors contributed to this: an economic scenario of permanent instability and dependence on the external market, increased regional inequalities, and a large surplus of labour in all sectors. In addition, restrictive policies extended even to forced migrations. In fact, Brazil did not even have an active migration policy to welcome large numbers of refugee populations during the twentieth

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century wars, despite having joined the 1951 Convention Relating to the Status of Refugees.20 For these reasons, during the second half of the twentieth century, Brazil was not very receptive to migratory movements. Indeed, the dictatorships between 1964 and 1984 adopted discriminatory and xenophobic approaches toward particular nationalities and individuals who were seen as dangerous to national security.21 The restrictions imposed by the military governments were kept until the final years of the dictatorship. In its original version, Article 16 of Law No. 6,815 of 1980, or the Migration Statute, establishes the purposes of immigration as follows: “Immigration has as its main objective to provide specialized labour for several sectors of the national economy, aiming to increase productivity, the assimilation of technology, and the acquisition of resources for specific sectors.”22 The 1980 law was very explicit about the legally accepted migratory profile in Brazil. Its aim was to only allow entry to highly qualified immigrants and to establish a very selective model for the arrival of workers. The preference for qualified foreign workers resulted in the implementation of a discriminatory policy based on the origin and political orientation of immigrants, who were only admitted if they fulfilled the profile of qualified migrants, contributed to economic growth, and served the national goals. The 1980 Migration Statute, proposed by Decree 86,715 / 1981, replicated the “doctrine of national security,” which had been used by the military governments for immigration affairs. This statute saw foreigners as dangerous subjects who had to be controlled. The law thus set out a wide range of restrictions on the civil, political, and economic rights of foreigners residing in the country, a condition that impeded effectively integrating immigrants into the national community. In the same decade, the National Immigration Council (C N I g, part of the Ministry of Labour and Social Welfare) was created. This body is responsible for directing, coordin­ating, and monitoring immigration policies that reinforce this immigration approach, that is, focusing on meeting the needs of the internal labour market.23 In spite of the legal difficulties of this period, irregular migratory movements between Brazilians and citizens from bordering countries were common, especially from Argentina, Bolivia, French Guiana, Paraguay, and Uruguay. In all cases, restrictions on migrants’ rights, wide administrative discretion, and limited possibilities to regularize residence and status led to circumstances of great vulnerability for

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migrants. This situation began to change with the enactment of the Constitution of the Federal Republic of Brazil of 1988 (hereafter referred to as the 1988 Constitution),24 and the introduction of democratic principles that provided a more open normative framework to institutions. For example, this allowed the CNIg to design fairer migration policies and to set fewer restrictions on migrants in Brazil. Moreover, between 1980 and 1990, emigration flows of Brazilians to North and South America and Asia became more common, as a result of continuous economic crises in Brazil. During these years, international migration caused a loss of 1.8 million Brazilians, approximately 1.05 million men and 750,000 women.25 The tendency to emigrate then changed again in the 2000s, as a result of the country’s economic growth. The democratization implemented by the 1988 Constitution was also reflected in the approval of Law No. 9,474 of 1997,26 known as the Refuge Law. This legislation incorporated advances in the granting of refugee status for foreign citizens seeking protection in the Brazilian state. The creation of the Southern Common Market (M E RCO S U R) in 1991 did not bring any changes for Brazilian citizens because these bloc agreements were limited to the free circulation of goods. They did not address the free circulation of people. An important change happened in 2009, when the M E R C O S U R Residence Agreement,27 which had been issued in 2001, came into effect in Brazil, recognizing the right of residence for nationals of the member states. The 1988 Constitution and legislation described in the previous paragraphs have prompted a change in the country’s migratory reality that responds to two points. First, the migration profile has expanded, where previously it had been limited to the population of bordering countries. This is the case, for example, of Haitian migration, which was recently regulated by human rights-based legal instruments. In this case, a permanent humanitarian visa was created in 2012 to bring an unprecedented level of legal stability for Haitian citizens.28 Similarly, the migratory flow of Peruvian citizens to Brazil, as well as the migratory exchanges between Brazil and Angola, increased in the last decades of the twentieth century. Second, the incoming migratory flows of nationals from bordering countries also increased. More specifically, between 2000 and 2010, the São Paulo city office registered an increase in Bolivian migrants, from 6,600 to 18,000. However, the Bolivian consulate affirmed that

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this figure could exceed 100,000 if migrants in an irregular situation were also considered.29 At the legislative level, the countless attempts to approve a new migration law finally led to the approval of Law No. 13,347 on 24 May 2017, and the establishment of the Migration Law, or Law No.  13,445, which later developed into Decree No.  9,199 on 20 November 2017. The 2017 law started with the draft Law No. 2,516 of 2015, which was presented before the legislative chamber in 2015,30 and processed before the Special Commission of the House of Representatives. The original project was based on ideas aligned with human rights and constitutional advances. In April 2017, the project and Clean Bill No. 7 were processed and approved by the House of Representatives, and immediately sent to the federal Senate for analysis and voting. In its path through the Senate, some changes were made to improve its legislative details, while others experienced some setbacks.31 In any case, there were no significant alterations in the project, and the general lines and foundations of the original proposal were maintained. Finally, the project was approved by the Senate on 16 April 2017 and sent for executive approval. On 24 May 2017, the executive made 20 vetoes to the text approved in the Senate, which ended up distorting the initial proposal, i.e., of opening the country for immigration. The largest setback posed by presidential veto referred to the article on the amnesty to foreigners who were in an irregular situation and who could have been regularized if they had entered the national territory before 6 July 2016. The presidential veto also withdrew the clause that allowed migrants to hold office and be employed by public offices, or even enter the country through public tender for a state position. It would have been an opportunity to define the norms for a right that is already guaranteed by the Brazilian Constitution, and which jurisprudence considers essential, but that has not yet been regulated by a legislative act.32 However, the Constitution itself allows universities to admit foreign professors, technicians, and scientists (Article 207, Paragraph 1), and this indeed happens in public universities. Also, the veto made it impossible to have visa placements to enter Brazil in any travel document, issued under the International Civil Aviation Organization (ICAO) standards by the International Committee of the Red Cross. The possibility of creating other types of temporary visas, which was provided for in the previous

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legislation, was also vetoed. Because of pressure from air transport companies, the following article was also vetoed: “[P]roven wrong or culpable, the transport company will be responsible for the repatriation expenses and the costs derived from the stay of the person on whom it rests measure of repatriation” (Article 49, Paragraph 5, of the original text). A broad definition of family reunification beyond blood ties was also removed and the bill limited its extension. This was done by suppressing the single paragraph of Article 37, which had established (before the vetoes were in place) that “the granting of a visa or residence permit for purposes of family reunification may be extended, through a reasoned act, to other explanations such as kinship, affective dependence, and factors of sociability.” Other vetoes included prohibiting the free movement of Indigenous populations in the borderlands, which they have traditionally occupied, and withdrawing the article that prevented expulsions, issued before 1988, along with the article that blocked the expulsion of foreigners who commit crimes and who have lived in Brazil for more than four years. All these vetoes were based on questions of national security and the fight against drug trafficking. These ideas reflect a xenophobic and exclusionary vision that corresponds to the legacy of the military dictatorships from the 1960s to 1980 in South America, and that are consistent with the demands of neoliberal governments in South America and other continents. In contrast to all these vetoes, the requirement for the federal police to act alongside the Federal Public Defender’s Office, in case of a foreigner being detained at the border, was maintained. In practice, this measure prevents the federal police from deporting migrants without due legal process and grants immediate defence to migrants. On 30 April 2017, presidential vetoes to the initial project returned to the Senate to be approved. Finally, on 24 May 2017, the senate approved the Migration Law.

2 C h a n g in g Im m ig rati on Flows The report “Refuge in Numbers,” published by the National Committee for Refugees (C O NA R E ) in 2018, portrays and updates data on the application of refugee status to foreign citizens by the Brazilian state. Covering the time frame between 2010 and 2016,33 the report refers to two realities: the great migratory flow of Haitian

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citizens and the increase in citizens from conflict zones in the Middle East, the African continent, and Colombia. During this period (2010–16), refugee applications increased 2,868 per cent, reaching a total of 82,894 applications of citizens from 97 countries. This is an evident change from the total number of applications in 2010, when 966 applications were submitted. Since then, up until 2015, 28,670 applications were presented. Of these, 8,863 migrants were granted asylum status, an increase of 127 per cent in the number of refugees in Brazil. The largest number of asylum applications comes from the following nationalities: Bengali, Haitian, Nigerian, Senegalese, and Syrian. It is important to mention that Haitian citizens who initially requested ­refugee status were protected through humanitarian visas, based on the resolutions of the CNIg,34 but not under refugee status. Thus, until October 2015, the migration status of 43,871 Haitian citizens was regularized, even though they did not appear among the nationalities with the most refugees considered by the specifics of the humanitarian visa program. The largest number of asylum applications was from Syria, with 2,298 refugees recognized until April 2016, followed by Angola, Colombia, the Democratic Republic of the Congo, and Lebanon. The profiles of refugee applicants indicate that 41.6 per cent of applicants are between 18 and 29 years old, according to the 2016 CONARE report. A large number of them have attended university, and 71.8 per cent are men. The report also shows that Brazil recognized a total of 10,145 refugees of different nationalities by the end of 2017. It is important to note that only 5,134 of them are currently registered in the country; 52 per cent live in São Paulo, 17 per cent in Rio de Janeiro, and 8 per cent in Parana. Syrians represent 35 per cent of the refugee population with active registration in Brazil. The data shows a noteworthy change. In total, 33,866 people applied for refugee status in Brazil in 2017. Venezuelans account for more than half of the requests, with 17,865 applications. In fact, the crisis in Venezuela, which has forced thousands of people to leave the country, is starting to have an effect in Brazil. Venezuelans are followed by Cubans (2,373), Haitians (2,362), and Angolans (2,036). The states with the most asylum requests are Roraima (15,955), São Paulo (9,591), and Amazonas (2,864).35 During 2018, the proportion of Venezuelan shelter applicants continued to grow, compared with those of other nationalities, accounting for 77 per cent of applicants that year.

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The next highest percentages were those of Haitians (9 per cent) and Cubans (3 per cent). Syrians represented only 1 per cent.36 It is necessary to highlight that the processes of requesting and being granted refugee status do not fully illustrate the reality of migratory flows – especially migrations between Brazil and its bordering countries and other Latin American countries. These flows are known as “pendular movements” or “cross-border movements,” in which continuous transits in both directions take place, daily or seasonal inflows and outflows, with workplaces, housing, and the use of public services in Brazilian cities rotating near the borders. These migrants’ migration status is rarely regularized because of the difficulties of being documented with the provisions of the old legislation, Law No. 6,815 of 1980. These cases began to be partially modified with the signing of the Residence Agreement of the M E R C O S U R in 2009. Under the broader regulation of the new Migration Law, it is expected that permits for residence and work across the border will be issued. In addition, between 2006 and 2014, the number of formal and informal jobs in Brazil grew, attracting a new contingent of workers. However, since the second half of 2014, the effects of the economic crisis and the increasing unemployment rate have resulted in many migrants leaving for other countries in search of jobs, as well as restrictions for new workers arriving. This change is recent and, so far, there is no information on the processes of return or second migrations. In any case, it is evident that the low employment rate has slowed down the arrival of migrants in Brazil. We will have to wait a few years to make a general assessment of the impact of the economic crisis. In 2017, Brazil continued to be a destination country for thousands of migrants from countries in Latin America, Africa, and Asia, especially from Syria. That year, approximately 736,000 immigrants were registered as having entered the country. The largest group was Portuguese, followed by Japanese, Italians, Paraguayans, and Bolivians.37 The number of asylum applications in the last decade also increased, especially by Venezuelans, followed by smaller numbers of Cubans, Angolans, Haitians, and Syrians.38

3 C u r r e n t L e g is l at io n on I mmi grati on, A sy l u m , a n d   N ati onali ty Law No. 6,815 of 1980, the legislation on the immigration of foreigners, remained in effect until 2017. As explained above, this legislation

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40,000 33,767

35,000 30,000 25,000 20,000 14,749

15,000 8,911

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Figure 2.1 Brazil: Total number of asylum requests per year (of all national origins), 2000–17 Source: UNHCR, “Refugee Data Finder,” last modified June 2020, https://www.unhcr.org/ refugee-statistics/download/?url=E1ZxP4.

was characterized by its emphasis on national security and conditioning migration policies for the socio-economic development of the country. In 2017, Law No. 13,347 and Decree No. 9,199 replaced this migratory statute. The current Brazilian immigration law takes a human rights approach and guarantees equal treatment without discrimination. It simplifies the processes of migration regulation, institutionalizes humanitarian visas, decriminalizes immigration, and grants a series of rights to migrant populations that until now were neither recognized nor guaranteed.39 The law defines an immigrant as a citizen from another country, or a stateless person, who works or resides and is established temporarily or permanently in Brazil. As described above, the law regulates migrants’ rights, the visa system, residence authorizations, infractions and administrative sanctions, and expulsions or deportations. This law also stipulates that extradition must be regulated. At the same time, it is important to consider that this law is very general in its provisions, and was greatly affected by the vetoes on several of its articles. Therefore, it is also necessary to resort to Decree No.  9,199 of 20 November 2017, which regulates this law and offers more details.

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It is essential to provide clear terminology for definitions of asylum and refugee status in the Brazilian Constitution and in current legislation. On the one hand, the constitutional text refers to the word “asylum” as the protection against displacement or forced migration. Article 4, Subparagraph X of the Constitution of the Federal Republic of Brazil40 establishes: “The international relations of the Federative Republic of Brazil are governed by the following principles: X, granting of political asylum.” On the other hand, the term adopted by Law No. 9,474 of 1997 is refugee. This law defines the mechanisms for the implementation of the 1951 Convention Relating to the Status of Refugees, and does not use the term “asylum.” The use of these two terms in the regulations can lead to confusion that is also present in the legal systems of other Latin American countries. The delimitation of the concept of asylum and refugee status is the subject of international theoretical debates with real-world effects. Some understand political asylum as an exclusively Latin American institution, whereas refugee status is a part of the universal system for the protection of refugees. However, some scholars conceive of asylum as the protection of individuals, and refugee status as the protection of groups; sometimes, these terms may even be synonymous. In any case, these issues are still open to debate. As analyzed in the following paragraphs, Brazil stipulates asylum for persecutions that have their origin in the political activity of a person, including diplomatic asylum. In turn, refuge provides migrants protection from persecution for other reasons under the terms of the Geneva Convention, even situations of generalized and objective risk, following the Cartagena Declaration on Refugees. As legislation focusing on refugees, Law No. 9,474 of 22 July 199741 offers protection to any foreign citizen who demonstrates persecution based on the criteria defined in the Convention Relating to the Status of Refugees of 195142 and the Cartagena Declaration on Refugees of 1984. Article 1: The term refugee shall apply to any person who: 1 Owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of their nationality and is unable or unwilling to avail themselves of the protection of that country; or,

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2 Who, not having a nationality and being outside the country of their former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it; 3 Due to serious and widespread violation of human rights, they are forced to leave their country of origin, to seek refuge in another country.43 The first paragraph of article 1 recognizes protection under the terms of international refugee law, specifically under the Geneva Convention. It grants protection whenever persecution is based on one of the described reasons (race, religion, nationality, social group, or political opinion) and has a subjective nature, that is, whenever a direct persecution toward the person requesting protection can be proven. The second paragraph recognizes the right of non-refoulement, and, therefore, the impossibility of expelling or deporting persons whose life and integrity are in danger in the country of origin. Finally, and perhaps the most interesting aspect of the Brazilian legislation, the third paragraph recognizes protection in situations of general human rights violations, under the terms of the Cartagena Convention, which allows for the opening of the right of asylum, or refuge, in objective situations. The Migration Law of 2017 includes diplomatic or territorial asylum. Decree No. 9,199 also defines political asylum as an instrument of protection for people who are persecuted by a state due to their beliefs, opinions, and political affiliation, or for acts that may be considered political crimes. Diplomatic asylum can be requested at a diplomatic office abroad and territorial asylum with the competent authorities. In turn, the regulation also stipulates refugee status, which is regulated by Refuge Law No. 9,474 of 1997. The decree also provides for a temporary humanitarian visa, which can be granted to a stateless person or to a citizen of any country in a situation of serious or imminent institutional instability, armed conflict, a calamity of great proportion, environmental disaster, serious violation of human rights, or international humanitarian law. This visa reflects a much broader level of protection against situations of forced migration. In terms of the Cartagena Declaration, it is also understood as the appropriate instrument to protect displaced Haitians and Venezuelans fleeing from the social and political instability in their countries. For concrete measures to protect and integrate refugees, the decree recognizes a series of rights that contribute to social inclusion. These

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include: being provided a carteira de trabalho (mandatory work permit in Brazil), being included in the Cadastro de Pessoa Física (fiscal register), being able to open a bank account in institutions supervised by the Central Bank, and having certificates and diplomas recognized to be able to apply for resident status or enroll in educational centres. Likewise, the decree specifies that irregular entry into the country does not impede application for refugee status. For defining nationality, Clause I of Article 12 of the 1988 Brazilian Constitution contains the general rules to access Brazilian nationality, based both on jus sanguinis and jus soli. In subsection II, the rules on derivative nationality (i.e., naturalization) are established. The law requires four years of residence in Brazil to provide regular naturalization. However, people from Portuguese-speaking countries have a reduced time of one year – a privilege established by the Constitution. In turn, those who reside in Brazil for more than fifteen years, without any criminal convictions, may request extraordinary naturalization, a simpler and faster procedure. Article 12: The following are Brazilians: I by birth: a those born in the Federative Republic of Brazil, even of foreign parents, provided that they are not in the service of their country; b those born abroad, of a Brazilian father or a Brazilian mother, provided that either of them is serving the Federative Republic of Brazil; c Those born abroad, of a Brazilian father or a Brazilian mother, provided that they come to reside in the Federative Republic of Brazil and opt for the Brazilian nationality at any time; II naturalized: a those who, as set forth by law, acquire Brazilian nationality, and, for persons originating from Portuguese speaking countries, the only requirement being residence for one uninterrupted year and moral integrity; b foreigners of any nationality, resident in the Federative Republic of Brazil for over fifteen uninterrupted years and without criminal conviction, provided that they apply for the Brazilian nationality.44

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The process of obtaining Brazilian nationality through naturalization is provided in Chapter V I of Law No. 13,347 of 2017, and in Chapter X I I of Decree No. 9,199 of 2017.

4 R e c o g n it io n o f F orei gners’ Ri ghts The Federal Constitution of 1988 establishes in its first article, ­subsection III, that human dignity, together with the sovereignty of citizenship, the social values of work, free enterprise, and legal ­pluralism,45 are the integral principles of Brazilian social and political life. They are also the guiding principles of the legal democratic state and cannot be abolished, separated, or subordinated to each other. Moreover, in articles 5 and 6, an interpretive principle is established, in favour of the recognition of rights. According to this principle, fundamental rights and guarantees – individual, collective, and social rights – are extended to all Brazilians and foreigners based on the understanding that all subjects are endowed with equal ­dignity, regardless of any other legal qualification.46 Therefore, the legislative development that subsequently takes place must follow this pro-rights interpretation, since in no way can the fundamental and individual, or social, rights of non-nationals be abolished or restricted. In regard to suffrage, only Brazilian nationals are constitutionally recognized. Article 14.2 of the Constitution explicitly states that “­foreigners cannot register as voters.” However, this article must be interpreted jointly with Article 12. II.1, wherein it is specified that Portuguese nationals with permanent residence in the country may be entitled to the same rights as Brazilians due to the principle of reciprocity. Articles 12 through 17 of the Tratado de amizade, cooperação e consulta entre a república portuguesa e a república federativa do Brasil (Treaty of friendship, cooperation and consultation between the Portuguese Republic and the Federative Republic of Brazil) extended the right to vote to Portuguese nationals under the following conditions: a) residence for a minimum of three years, civil status, and explicit request by the interested party to the Brazilian Ministry of Justice and Public Security; and b) full use of political rights in the State of which the petitioner is a national. At the same time, granting political rights in the place of residence entails suspending one’s own rights in the state of nationality.47

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Law No. 6,815 of 1980 included regulations on the rights of foreigners, with a very broad list of prohibitions referring to the exercise of economic, political, and social activities. In Articles 106 and 107, foreigners were prohibited from owning ships or planes, media companies, exploiting natural resources, administering or representing a union, organizing political activities, and exercising the right to demonstrate, among others. The law also established a wide margin of exceptions to the prohibitions for Portuguese nationals. Jurists, who proclaimed the egalitarian character of the 1988 federal constitution, constantly criticized the restrictions established by the 1980 statute. Thus, the constitutional text incorporates a principle of equal treatment toward nationals and non-nationals and stipulates restrictions only in the political sphere, as mentioned here. The recent Migration Law significantly modified the framework of rights and freedoms recognized in the Brazilian legislation. First, the regulation of rights changed. The 1980 Statute of Foreign Non-Nationals regulated the regime of rights through prohibitions; the 2017 Migration Law, in contrast, establishes their rights through the principle of recognition. Thus, Article 4 of Law No. 13,445 of 2017 includes a broad list of rights in which the right to life, liberty, security, and property are placed first. Basic rights are included, such as freedom of movement, the right to remain and enter the territory, the right of assembly and association, and the right to information and data protection. For social rights, the law includes access to public health services and social assistance, the right to education, labour protection for workers, protection for victims of crime, and free legal assistance in cases of insufficient resources. A third list refers to rights closely linked to migratory status, such as family reunification, the right to send remittances to countries of origin, and the right to open a bank account. In addition, many of the rights recognized are followed by the clause of equality in the treatment of nationals and the principle of non-discrimination. 4.1 The Special Case of Contingent Pension Benefits For social rights that require state benefits, the Constitution of 198848 provides a range of rights designed to protect society’s most vulnerable, to ensure a dignified life for citizens. With this objective in mind, Article 203 of the Constitution attributes the protection of the elderly and of people with disabilities as a state duty, without any restrictions or exceptions.

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Despite these constitutional provisions, the government systematically refused to grant the Continuing Pension Benefit (B P C in Portuguese) through the National Institute of Social Security (INSS).49 After several judicial declarations recognizing non-nationals’ right to this social benefit, the INSS established an internal administrative rule on 27 January 2016 that provides that the BPC be granted to foreigners, citing, as a legal basis, the decision proffered by the 21st Federal Court of the Judicial Section of the Federal District in the A C P No. 0006972-83.2012.4.01.3400. The administrative decision of the I N S S to grant foreigners who were residing in Brazil the B P C was subsequently reiterated and left no doubt about conceding this benefit to foreigners, as can be observed in the text: To the Regional Superintendents, Executives Managers, Managers of Social Welfare Agencies, Specialists in Standards and Benefits Management, Heads of Division/Benefits Service, Heads of Service, Section of Recognition of Rights. Subject: Decision made by the 21st Federal Court of the Judicial Section of the Federal District in the ACP No. 000697283.2012.4.01.3400. Concession of the BP C/ L O AS , provided in subsection V of art. 203 of the Federal Constitution, to foreigners residing in Brazil. 1 We inform that the 21st Federal Court of the Judicial Section of the Federal District, in the ACP Nº 000697283.2012.4.01.3400, determined that the I N S S refrain from denying requests for assistance benefits exclusively on account of the nationality of the applicants, in order to guarantee throughout the national territory to foreigners residing in the country in a regular situation, elderly people and people with disabilities the right to the welfare benefit provided in the paragraph V, art. 203 of the Federal Constitution. 2 To comply with the judicial determination, in the requirements of the benefits of the Continuous Pension Benefit-BP C/ LOA S (motive 87 and 88), filed by foreigners residing in the country, must be observed in the guidelines contained in this Joint Memorandum-Circular. 3 The judicial determination has a national scope and produces effects for welfare benefits (motive 87 and 88) required as of 10/27/2015.

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3.1 Once the validity of the judicial decision is established, the benefits of motives 87 and 88 will no longer be indefinite for motive 84 (foreign nationality).50 However, the rule on access to social benefits was soon administratively revoked. The INSS continued to deny this benefit and advocated for foreigners’ non-concession of this benefit in court. In contrast, the Federal Public Defender’s Office, and several support organizations for migrants, protested against this refusal, and a case was filed in an extraordinary appeal to the Federal Supreme Court (STF) against the I N S S .51 Once again, the controversy revolved around the scope of article 203, clause V of the Constitution, which does not make any negative reference to foreigners. This article delegates the task of defining the evaluation criteria for the requirements to access specific benefits, and its restrictions, to the ordinary legislation. The IN S S reiterated the argument that the Constitution itself provides for distinctions between nationals and foreigners, and asserted the absence of an identical situation between nationals and foreigners. If this were the case, following this logic there would be no reason to extend Brazilian citizens’ rights to Portuguese residents. Likewise, the I N S S supported the lack of effectiveness of what is contained in Article 203, clause V of the 1988 Constitution, alleging that the constitutional text itself subjects the benefit to the terms defined in the law. Finally, the INSS sought to demonstrate that the national budget could not cover these expenses, and that this benefit could only be granted to foreigners whose country of origin guarantees identical protection to Brazilians residing in that country. The S F T reaffirmed the imperative and nondiscriminatory nature of the 1988 Constitution, and mentioned that this welfare benefit had been granted to born, naturalized, and foreign Brazilians in previous decisions, in the following terms:52 “In this line of thought, foreigners in a different situation do not seek assistance, in view of non-compliance with Brazilian laws, a fact that, in itself, demonstrates the absence of a notion of collectivity and solidarity to justify State protection. Given this context, I deprive the extraordinary appeal filed by the National Institute of Insurance and Social. The following thesis was established: ‘Foreign residents in the country are beneficiaries of social assistance provided for in article 203, item V, of the Federal Constitution, once the constitutional and legal requirements have been met.’”

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The S F T ’s decision demonstrates the difficulty of putting social rights into effect in Brazil. It also illustrates the Brazilian public administration’s widespread discrimination toward foreigners. However, it is also necessary to emphasize that, in Brazilian society, applying and recognizing fundamental rights encounters numerous obstacles. Unfortunately, so far these have not been overcome. The obstacles to the effective exercise of foreigners’ fundamental rights are institutional and cultural in nature, limitations due mainly to the history of immigration to Brazil, and Brazilian society’s lack of understanding of refugee or migrant status.

5 Re s id e n c e a n d M ig r a n t Labour Regulati ons Article 5 of the 1988 Federal Constitution establishes the regime of equal rights between Brazilians and foreigners residing in the country. For this purpose, international law must also be considered. The conventions, treaties, and international agreements signed by Brazil have become national law, and helped to specify certain issues. International standards also serve as an interpretive instrument of national legislation on residence and work for migrants. In addition, the third chapter of the 2017 Migration Law focuses on the legal status of immigrants, establishing the residence authorization regime for non-nationals. The change introduced by the new regulation expands the cases for a residence permit, eases the procedure to acquire it, and eliminates the defensive approach to residence. With the 1980 Foreign Statute, only a particular category of workers could apply for work residence, which included scientists, researchers, professors, technicians or professionals of other categories, or personnel hired by the government. The consequence of such a restrictive regime was that it forced many migrant workers into irregular status. Under the new migration law, the category of the residence permit was created, which did not exist until then.53 The residence permit provides for a total of seventeen concession grounds, among them having a job offer; being a beneficiary of a treaty on residence and free movement; being a beneficiary of asylum, refuge, or statelessness; and being a victim of trafficking or slave labour. In addition to the systematization and extension of the motives that give right to residence in the territory, the new law is an improvement, because the procedure requesting it is flexible. The legislation allows its

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application to be filed in the national territory, so that migrants who are in an irregular administrative situation can also access it. This possibility opens a path of permanent regularization that especially favours workers who are in more vulnerable and precarious situations. As for the rest, the law facilitates the possibility of changing residence status without having to apply for it from their country of origin, thus preventing migrants from having to leave the country to apply for a new visa.54 And the law provides legal guarantees by opening up the possibility of filing appeals whenever residence applications have been denied. The law also regulates the status of the border resident. This is especially relevant for a territory like Brazil, since it shares its border with nine other countries. This category allows migrants to enter and exit from border municipalities, to exercise paid activity on both sides It also authorizes acts in civil life, such as marriages, which may be granted for a period of up to five years. Otherwise, the law and the decree extend the guarantees and rights recognized to residents of the general regime (i.e., regimes not on the border). For citizens and countries that are part of M E RCO S U R, Brazil has signed several bilateral agreements that benefit citizens of the Southern Cone. These are: the Agreement on Residence for Nationals of the Member States of M E R C O S U R , approved by the 2009 Decrees No. 6,964 and No. 6,975; and the Bilateral Agreement between Brazil and Uruguay to obtain permissions of residence, study, and work for border, Brazilian, and Uruguayan nationals, approved by Decree No. 6,736 of 2009. Once granted stay in Brazil, foreigners are also protected by Law No. 5,452 of 1 May 1943,55 which constitutes the legal body that governs labour relations. More specifically, Article 7 of the 1988 Constitution welcomed, expanded, and updated this legislation’s core of rights. Along with the 1988 Constitution, and Brazilian legislation on workers’ rights, the country signed several conventions, treaties, and agreements that integrate its normative structure in labour matters. These are the International Labour Organization Migration for Employment Convention (Revised), 1949 (No. 97), approved by Decree No. 62,150 / 68; the M E R C O S U R Multilateral Agreement on Social Security (ME R C OSUR  / C MC / D E C No. 19 / 97), approved by Decree No. 5,722 / 2006; and the Agreement for the Facilitation of  Business Activities in M E R C O S U R (M E R C O S U R  / C M C  / D E C No. 32 / 04), approved by Decree No. 6,418 / 08.

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Brazil has not yet ratified the United Nations (U N ) International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families of 1990, I L O Convention No. 143 concerning migrations in abusive conditions, or the promotion of equality of opportunity and treatment of migrant workers or I L O Convention No. 181 on Private Employment Agencies. In addition to these treaties and improvements, a series of normative documents have been drafted in the last ten years that aim to make labour rights more universal and to prevent precarious work and slave labour. An example of this is the National Plan to  Combat Human Trafficking (P N E T P ), approved by Decree No. 6,347 / 2008. Regulating labour rights in Brazil has proved insufficient and its shortcomings extend to all national and non-national workers. Workers face labour precarity and a lack of legal guarantees that are based on a colonial social structure and a dependent economic model. While it is true that the weakness of labour rights and guarantees is, to a degree, promoted by labour legislation itself, since it does not establish a system that effectively protects workers, the apparent legality does not exempt the fact that labour is carried out in conditions that threaten workers’ dignity. This is especially true in specific sectors, such as agriculture and labour-intensive industrial sectors. In addition, a large number of foreigners entering the labour market in Brazil do so in even more adverse conditions, because of their vulnerable situations. Migrants and Brazilian civil society frequently denounce this labour precarity. Likewise, claims, related to the improvement and universalization of labour rights, constitute another front in the defence of rights for all people.

6 R e g u l at io n s f o r Expuls i ons According to Article 22 of the Brazilian Constitution, the expulsion and extradition of foreigners are exclusive competencies of the federation. In the 1980 statute, an extensive list of assumptions and infractions of vague legal concepts, such as public order, national security, public or national interest, and good customs regulated the living and residence status of foreigners in Brazil. There was also the possibility that they would be expelled in cases of serious crimes, or whenever they committed a crime related to the concepts of this

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legislative policy. Once a foreigner committed an infraction, they would lose their right to stay. The amendments to the 2017 Migration Law should be highlighted. First, irregular stay in the territory is not a crime anymore, a significant step toward the decriminalization of irregular status. Second, the law incorporates three forms of expulsion from the Brazilian territory on the basis of the principle of proportionality. Finally, the legislation recognizes a level of basic guarantees linked to judicial protection and defence of foreigners’ rights. The first form of expulsion is repatriation. This is provided in Article 49 of the law and refers to cases of return at the border, when the applicant has not complied with immigration law requirements. It also establishes that refugees, or stateless individuals, cannot be repatriated. For unaccompanied foreign minors, or minors separated from their family members, repatriation is provided only in cases when it is proven that they must regroup with their family of origin to guarantee the rights of the minors. Finally, the principle of non-refoulement is established when repatriation is not an option, because it represents a risk to the life, integrity, or freedom of the person. The second form of expulsion considered by the law is deportation. Deportation is defined as the administrative procedure pursued to remove foreign nationals who are in an irregular situation from the national territory. In any case, it is very striking that the law itself provides for a “grace period” of six months, extendable for six more, for a person to regularize their administrative situation. Once this period is over, the person will be deported. In addition, the law does not provide for the detainment of foreigners in specific detention centres, but a much less restrictive and more of a guarantor measure, such as communicating where they live. It also establishes that, in the procedures that lead to deportation, the principle of contradiction, the rights of defence, and the instance that a filed appeal may suspend an order, must be respected. The third category is expulsion. Expulsion also entails the removal of a foreigner from the national territory, but, in this case, an entry ban is issued for a specific period of time. Expulsion is mainly issued as a punishment if someone commits a crime. Specifically, it is related to war crimes and common crimes – the latter being an open clause that includes a very large number of crimes. The legislation includes a set of cases for which it is not possible to carry out an expulsion: having a child of Brazilian nationality whenever they are under the

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care and guardianship of the person to be expelled; having a resident spouse or partner; having entered Brazil at the age of twelve years; or to be more than seventy years old. During expulsion procedures, the right of contradiction and defence must be guaranteed. However, in this case, no reference is made to guarantee the suspension of the order after the filing of an appeal, unlike what was indicated above for the cases of deportation. For the guarantees provided for this type of procedure, Article 46 establishes that they must be in accordance with the provisions of Refugee Law No. 9,474 of 1997. In this sense, Article 36 of the Refugee Law introduces a ban on expulsion from the national ­territory to refugees who are regularly registered, except for reasons of national security or public order. Following the principle of ­non-refoulement, Article 37 also dictates that refugees will not be expelled to the country they come from if their freedom or physical safety are at risk. Their departure will only be allowed after their admission has been confirmed in a country where there are no risks of persecution. Otherwise, Article 47 of the Migration Law includes a generic reference to compliance in this type of procedure with the treaties that Brazil has signed. Apart from what is established in the legislation on foreigners, it is also appropriate to reinforce the idea that the Federal Constitution develops a universal approach to granting foreigners’ fundamental rights. This extends to all constitutional guarantees against the actions of the state or private entities. Access to judges and courts is recognized for all persons, under the terms established by the law, without any discrimination.56 In the same way, the principles of broad defence and contradiction apply to all processes that may result in expulsion or extradition, or that affect the rights of foreign citizens residing in Brazil.

7 P o l ic ie s a n d R egulati ons f o r t h e In t e g r at io n o f I mmi grants and the Struggle against Racism and Xenophobia Brazil has few legal norms or public policies for effectively integrating migrants and refugees into Brazilian society. However, the federal constitution allows policies and rules to be constructed for their integration, on the basis of the principles of protection, respect, human dignity, and equal treatment without discrimination. These principles

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must be promoted by the public administration, and the whole of society, toward any person. It is worth highlighting some recent advances on refuge. According to the report “Refuge in Numbers,”57 some public policies that have been adopted are: providing special humanitarian measures, ­strengthening C O NA R E , configuring local integration measures, and creating and maintaining public bodies intended for the assistance of migrants and refugees. With respect to legal advances, Migration Law No. 13,445 of 2017 establishes that Brazilian migration policy is governed by the principle of repudiation and the prevention of xenophobia, racism, and any other form of discrimination. There is also the provisional measure No. 697 of 2015,58 which allocated additional resources to the Ministries of Justice and Public Security, Foreign Affairs, Transport, Defense, and National Integration for managing the refugee crisis; as well as resolutions No. 17 of 2013, No. 20 of 2015, and No. 21 of 201559 of CONARE, and Ordinance No. 1,956 of 2015 of the Ministry of Justice and Public Security. With regard to administrative measures, the National Policy Project on Migration, Refugee Protection and Statelessness stands out, along with the elaboration of data and statistics within the framework of the Migration Observatory project (O B M igra). Other measures include the creation of the Humanitarian Visa Program for Haitian citizens, in January 2012; the special visa program for those affected by the Syrian conflict, the scope of application of Resolutions No. 17 of 2013 and No. 20 of 2015 of C ONA R E ; support to CO N ARE itself; and the creation of new units in the states of Rio de Janeiro, São Paulo, and Rio Grande do Sul. The strengthening of human resources and the rationalization of flows and processes are also consistent with these efforts. Similarly, the Reference and Refugee Migrant and Refugee Centres (R E D E C R A I ) have integration measures for migrants and refugees, which provide support in the documentation process, offer classes, and mediate access to social rights and resettlement. In addition to the measures from the “Good Practices for Urban Refugees” report of the United Nations High Commissioner for Refugees (UNHCR),60 the program of temporary accommodation in São Paulo for refugees and asylum seekers stands out. Public policy development for the social inclusion of refugees in the state committees of Paraná, São Paulo, and Rio de Janeiro show similar efforts. Also, municipal committees in Porto Alegre focus on immigrants, refugees, stateless persons, and victims of human trafficking. Finally,

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local associations and public universities in Curitiba, Manaus, São Paulo, and Guarulhos, provide free Portuguese classes, which provide measures for integrating immigrants. It is important to highlight the implementation of refugee resettlement programs in the states of the Brazilian Federation proposed and supported by UNHCR. This protection measure, focusing on the integration of refugees, is specified in the 1951 Convention Relating to the Status of Refugees, and in Law No. 9,474 of 1997. It sets as a priority welcoming refugees who did not adapt, or could not remain, in the first country, and are directed to another one, so that they may have another opportunity to adapt. The purpose of resettlement is to reduce pressure on a refugee to settle in countries closest to regions of conflict that cannot receive a greater number of refugees. Solidarity resettlement thus helps address emergency situations, and seeks to effectively integrate refugees in another country. Regarding anti-racism and -xenophobia measures, the criminal code stipulates banning and criminalizing all forms of discrimination, racism, and xenophobia,61 and takes as a starting point the full equality of rights established in the Federal Constitution. Recently, public affirmative action policies, which seek the full integration and benefit of citizenship for minorities and different identities, have been implemented.

8 C o n c l u s i ons Throughout its history, Brazil has received migrants from a wide variety of countries of origin. After the period of Portuguese colonization, the country ranked as the largest importer of African enslaved people. Once slavery was abolished, at the end of the nineteenth century, migratory policies began to shift in favour of Europeans. Most of these migrants came from economically depressed regions that were affected by the wars in Europe, while in Brazilian territory, they would assist in the “loss” of African labour in the fields. Thus, the country mainly received migrants from Portugal, Spain, and the recently unified Germany and Italy. At that time, migration policy was strongly linked to national aspirations of economic development. For this reason, policy privileged a specific migrant profile (white workers who would be easily assimilated into Brazilian society) to the detriment of other populations, such as those from Asia. The twentieth century brought a less stable economy and the emergence of authoritarian governments between 1964 and 1984, along with favouring a restrictive approach to migration policy. Despite

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adhering to the 1951 Convention Relating to the Status of Refugees, the Brazilian government mostly understood the issue of migration through a security and economics lens. Therefore, they favoured qualified migration linked to specific professions, and dropped their commitment to vulnerable populations that required international protection. Even in the midst of these restrictions, irregular migratory flows between Brazil and bordering countries were intense. Administrative barriers ended up not protecting people who managed to enter irregularly, instead of preventing access to Brazilian territory altogether. This began to change with the return to democracy, the enactment of the 1988 Constitution, and the rise of Brazil’s international presence, associated with its participation in MERCOSUR. The new migration regulations incorporated international principles to protect human rights, yet there are still large gaps in applying these standards and principles in practice. In recent years, the regulation of migration in Brazil has undergone an unprecedented change. The repeal of Decree No. 86,715 / 1981, which put in effect the 2017 Immigration Act and Decree No. 9,199, represents a change in approach to immigration based on security and economic development. This change has translated into a vision that assumes immigration as a structural and long-term phenomenon. In this sense, regulating categories, such as residence, the right to work and social security, family reunification, and flexible access to nationality, are elements that demonstrate a change in how migratory flows in Brazil are understood and treated. It should also be noted that there has been some progress in human rights in the new regulations, especially the right to mobility. Humanitarian visas, the possibility of regularizing status in response to an expulsion order, ways to deal with statelessness, or the lack of internment of immigrants are some outstanding aspects. Likewise, the possibility of filing administrative and judicial appeals against administrative decisions, and the guarantee of the right of defence and legal assistance, imply important changes in the face of discretionary and arbitrary actions by immigration offices. In any case, these advances depend directly on the change and modernization of the immigration administration, which on many occasions continues to act under the parameters of the 1981 Decree. The dynamics of suspicion and security created in the state’s administration, and in the police force, specifically regarding their treatment of migrants, may be an impediment to the progress incorporated in the 2017 Law and Decree No. 9,199 / 2017.

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The assessment of the law, based on a human rights perspective, also deserves a less positive view, when taking into account the limits, or modifications, introduced by the presidential vetoes to the bill. In this case, the action of the executive power involved a legal setback, as in the case of the original provision of amnesty to migrants in an irregular situation, and the cancellation of expulsions carried out before the 1988 Constitution. Maintaining tight visa policies, expulsions, or deportations, also shows that the focus of the law has been on controlling migratory flows and security to the detriment of the right to migrate. Taking into account the trend of Latin American governments in recent years, a general assessment of the Migration Law in Brazil shows more progress than setbacks, proving that the country has moved to consolidating a democratic rule of law, based on the constitutional principle of human dignity, which must prevail regardless of a person’s origin. The current situation, however, suggests that, in the case of migrants’ rights, progress is not a consolidated victory, but one subject to significant setbacks. The government of President Jair Bolsonaro favours a migration policy that focuses on security and the defence of national sovereignty. In this spirit, Brazil withdrew from the UN Global Compact for Safe, Orderly and Regular Migration in January 2019. At the time he withdrew, the president affirmed on Twitter the sovereignty of his government to decide what kind of migrants are allowed to enter the country, as well as to demand that they adapt to local laws and customs. In July of the same year, the Minister of Justice, Sérgio Moro, approved the Portaria (administrative ordinance) 666 to prevent the entry, and facilitate the deportation of, foreigners who pose a threat to national security. Here, we see a setback compared with what had been previously advanced in the field of human rights, since considering a person a security threat is an ambiguous concept and could lead to public officials making arbitrary decisions.

Not e s  1 Renato Pinto Venâncio, “Presença portuguesa: de colonizadores a imigrantes,” in Brasil: 500 anos de povoamento, ed. Instituto Brasileiro de Geografia e Estatística (Rio de Janeiro: IBGE, 2007).   2 Ibid.

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 3 Ibid.   4 Lucia Maria P. Guimarães and Ronaldo Vainfas, “Sonhos galegos: os espanhóis no Brasil,” in Brasil: 500 anos de povoamento, ed. Instituto Brasileiro de Geografia e Estatística (Rio de Janeiro: IB GE, 2007).   5 João J. Reis, “Presença negra: conflitos e encontros,” in Brasil: 500 anos de povoamento, ed. Instituto Brasileiro de Geografia e Estatística (Rio de Janeiro: I BG E, 2007).  6 Ibid.   7 Brazil, Law No. 581, 4 September 1850.   8 Brazil, Law No. 3,353, 13 May 1888.   9 Brazil, Law of the State of São Paulo No. 356, 29 August 1895. Authorizes the Government to spend the necessary amount for the introduction of 60,000 immigrants, constituted exclusively of families of farmers from the European, American, and African continents. 10 Venâncio, “Presença portuguesa.” 11 Ibid. 12 Guimarães, and Vainfas, “Sonhos galegos.” 13 Ibid. 14 Ibid. 15 Valdir Gregory, “Imigração alemã: formação de uma comunidade teutobrasileira,” in Brasil: 500 anos de povoamento, ed. Instituto Brasileiro de Geografia e Estatística (Rio de Janeiro: IB GE, 2007). 16 Ibid. 17 Angela de C. Gomes, “Imigrantes italianos: entre a italianitá e a brasilidade,” in Brasil: 500 anos de povoamento, ed. Instituto Brasileiro de Geografia e Estatística (Rio de Janeiro: I B GE, 2007). 18 Brazil, Decree No. 4,547, 9 July 1870. Grants Manoel José da Costa Lima Vianna and João Antonio de Miranda e Silva, and/or the company that they organized, the authorization to import Asian workers; Brazil, Law No. 97, 5 October 1892. Allows free entry into the territory to Chinese and Japanese nationals, as well as authorizes the Government to promote the execution of the Treaty of 5 September 1980 with China, and the Treaty of Trade, Peace, and Friendship with Japan and other migrantsending regions. 19 Kaori Kodama, “O Sol Nascente do Brasil: um balanço da imigração japonesa,” in Brasil: 500 anos de povoamento, ed. Instituto Brasileiro de Geografia e Estatística (Rio de Janeiro: IB GE, 2007). 20 Adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries, on the Statute of Refugees and Stateless Persons, convened by Resolution No. 429 of the General Assembly of the United Nations, 14 December 1950. Ratified by Brazil on 28 January 1961.

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21 Brazil, Decree No. 16,761, 31 December 1924. Prohibits the entry of immigrants into national territory (passengers of second and third class) in the cases and conditions provided for in Arts. 1 and 2 of Law No. 4,247, 6 January 1921; Brazil, Decree-Law No. 383, 18 April 1938. Prohibits political activity to foreigners in Brazil and dictated other measures. 22 Brazil, Law No. 6,815, 19 August 1980. Defines the legal situation of foreigners in Brazil and created the National Immigration Council (C NIg). 23 Art. 15. The foreigner referred to in Item III or V of Art. 13 will only be granted the visa if they satisfy the special requirements established by the National Immigration Council, and if they are a party to an employment contract, issued by the Ministry of Labour and Social Welfare, except in the case of proven service to the Brazilian Government; Brazil. Law No. 6,815, of 19 August 1980. Defines the legal status of foreigners in Brazil and creates the National Immigration Council. 24 Art. 5. All are equal before the law, without distinction of any nature, guaranteeing to Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security, and property, under the following terms: […] § 2 The rights and guarantees expressed in this Constitution do not exclude others arising from the regime and principles adopted by it, or from international treaties to which the Federal Republic of Brazil is a party; Brazil, Constitution of the Federal Republic of Brazil, 5 October 1988. 25 Marden Barbosa de Campos, “Estimativas de migração internacional no Brasil: os velhos e os novos desafios,” in Reflexões sobre os Deslocamentos Populacionais no Brasil, ed. Luis A. Pinto de Oliveira and Antônio T. Ribeiro de Oliveira (Rio de Janeiro: Instituto Brasileiro de Geografia e Estatística, 2011). 26 Brazil. Law No. 9,474, 22 July 1997. Defines the mechanisms for the implementation of the 1951 Convention Relating to the Status of Refugees, and dictates other measures. 27 Brazil, Decree No. 6,975, 7 October 2009. Promulgates the Agreement on Residence for Nationals of the Member States of the Southern Common Market – M ERCOS U R, Bolivia and Chile. 28 C NI g, Normative Resolution No. 97, 12 January 2012. Provides for the granting of a permanent visa, provided for in Art. 16 of Law No. 6,815 of  19 August 1980, to the nationals of Haiti; C NIg, Normative Resolution No. 102, 26 April 2013. Modifies Art. 2 of Normative Resolution No. 97 of 12 January 2012. 29 Shari Wejsa and Jeffrey Lesser, “Migration in Brazil: The Making of a Multicultural Society,” Migration Policy Institute, 29 March 2018. 30 Chamber of Deputies, Bill No. 2 516/2015 and Annexes.

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31 2017 Advisory Opinion of the Foreign Affairs and National Defense Commission, On the Substitute of the Chamber of Deputies Nº 7 of 2016 to Senate Bill No. 288 of 2013 [originally PL No. 2,516, 2015, en el ­origen], which institutes the Migration Law. 32 Federal Constitution, Art. 317, “I: Public positions, jobs and functions are accessible to Brazilians who fulfill the requirements established by law, as well as foreigners, in accordance with the law.” 33 Ministry of Justice and Public Security of Brazil, “Sistema de Refúgio brasileiro: Desafíos e perspectivas” (presentation, the National Committee for Refugees, Brasilia, 2016), http://pt.slideshare.net/justicagovbr/ sistema-de-refgio-brasileiro-balano-at-abril-de-2016. 34 C NI g, Normative Resolution No. 97. 12 January 2012. Provides for the granting of a permanent visa, provided for in Art. 16 of Law No. 6,815 of 19 August 1980 to the nationals of Haiti; C NIg, Normative Resolution No. 102, 26 April 2013, Modifies Art. 2 of Normative Resolution No. 97 of 12 January 2012. 35 Ministry of Justice and Public Security of Brazil, “Refúgio em Números 3º Ediçao” (presentation, the National Committee for Refugees, Brasilia), http://portalods.com.br/publicacoes/refugio-em-numeros-3a-edicao. 36 Ministry of Justice and Public Security of Brazil, “Refúgio em Números 4º Ediçao” (presentation, the National Committee for Refugees, Brasilia), http://pt.slideshare.net/justicagovbr/sistema-de-refgio-brasileiro-balanoat-abril-de-2016. 37 Wejsa and Lesser, “Migration in Brazil.” 38 Ibid. 39 Sidney Guerra, “A nova lei de migração no Brasil: avanços e melhorias no campo dos direitos humanos,” Revista de Direito da Cidade 9, no. 4 (2017). 40 Constitution of the Federal Republic of Brazil, 5 October 1988. 41 Law No. 9,474, 22 July 1997. Defines the mechanisms for the implementation of the Convention Relating to the Status of Refugees of 1951 and dictates other measures. 42 1951 Convention Relating to the Status of Refugees. Adopted on 28 July 1951 by the United Nations Conference of Plenipotentiaries on the Statute of Refugees and Stateless Persons, convened by Resolution No. 429 of the General Assembly of the Nations United on 14 Decembre 1950, and ratified by Brazil on 28 January 1961. 43 Decree No. 9,199, Art. 108. 44 1988 Brazilian Constitution, Article 12. 45 Constitution of the Federal Republic of Brazil, 5 October 1988.

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46 Constitution of the Federal Republic of Brazil, 5 October 1988, Art. 5 All are equal before the law, without distinction of any nature, guaranteeing to Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property. 47 Ingo W. Sarlet, and David Almagro Castro, “Los derechos políticos en España y Brasil: una aproximación en perspectiva comparada,” Estudios Constitucionales 11, no. 1 (2013): 396. 48 Constitution of the Federal Republic of Brazil, 5 October 1988. 49 P C B , provided for in Law No. 8,742 / 1993 – Organic Social Assistance Law (L O AS ) – based on subsection V of Art. 203 of the Federal Constitution. 50 Decision made by the 21st Federal Court of the Judicial Section of the Federal District in the ACP No. 0006972-83.2012.4.01.3400. 51 Extraordinary Recourse 587,970, 20 April 2017, Federal Supreme Court, Rapporteur Minister Marco Aurélio. 52 Extraordinary Recourse 587, 970, 20 April 2017, Federal Supreme Court, Rapporteur Minister Marco Aurélio. 53 Marcelo D. Varella et al., “O caráter humanista da nova Lei de Migrações: avanços da Lei n. 13.445/2017 e os desafios da regulamentação,” Revista de Direito Internacional 14, no. 2 (2018): 261. 54 Ibid. 55 Decree-Law No. 5,452, 1 May 1943. Approves the Consolidation of the Work Laws. 56 Constitution of the Federal Republic of Brazil, 5 October 1988, Art. 5: “All are equal before the law, without distinction of any nature, guaranteeing to Brazilians and foreigners residing in the country the inviolability of the right to life, liberty, equality, security and property in the following terms: […] distinction LV – to litigants, in judicial or administrative proceedings and defendants in general, are insured or contradictory and extends defense, with the means and resources inherent in it.” 57 Ministry of Justice and Public Security of Brazil, “Sistema de Refúgio brasileiro.” 58 Provisional Measure 697, 8 October 2015. Opens extraordinary credit for the Ministries of Justice and Public Security, Foreign Affairs, Transport, Defense, and National Integration in the amount of R $ 950,246,149.00 for the purposes that it specifies. 59 National Committee for Refugees, Resolution No. 17, 20 September 2013. Provides for the granting of the appropriate visa, in accordance with Law No. 6,815 of 19 August 1980 and Decree No. 86,715 of 10 December 1981,

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to individuals who have been forcibly displaced on account of the armed conflict in the Syrian Arab Republic. 60 http://www.urbangoodpractices.org (English) and http://livelihoods.acnur. org/busqueda-avanzada/?no_cache=1 (Spanish). 61 Decree-Law No. 2,848 of 7 December 1940, Art. 140. Insulting someone, offending their dignity or decorum: […] the 3rd § If the offense is using elements in relation to race, colour, ethnicity, religion, national origin or condition of elderly or physically disabled: penalty – imprisonment from one to three years and fine; Decree No. 65,810, 8 December 1969. Promulgates the International Convention on the Elimination of All Forms of Racial Discrimination.

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3 Immigration Regulations in Chile: A Critical Analysis J a i m e B a s s a M er c a do a n d F e r n a n d a   T o r r e s V illa r r u b ia 1 In t ro du c t io n : Reflecti ons o n Im m ig r ati on Law Immigration law seeks to establish the legal status of immigrants by proposing the conditions and requirements through which their status, as rights holders, is recognized, and their exercise of these rights is guaranteed. However, along with the right to migrate, international law recognizes the sovereignty of each state to set the conditions for entry into, and staying in, its territory. This is limited by two factors: the principle of legality and equality before the law. This dynamic generates a fragmented set of international regulations for migrants’ rights, precisely because each state sets its own rules and there is no clarity in the legal regulation of migratory flows. Consequently, this presents the risk of creating divisions between migrants within each country, because the lack of clarity in the legislative criteria gives space to informally incorporating cultural and social prejudices. This is the case of Chile, whose migratory legislation was issued during the military dictatorship of Augusto Pinochet in 1975. Migration law is grounded in the same paradigm that sustains the international system of protection of human rights: the belief that everyone shares an inherent dignity, by virtue of being rights holders, because of the mere fact of being human. In abstract and generic terms, the paradigm conceives of all individuals as rights holders worthy of protection. However, this presupposition makes it difficult to include

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a key element in the exercise of rights: the material conditions of existence that produce the subject of these rights, conditions that also determine how they are applied. Given its pretension of universality, migration law often tends to ignore the structural differences of the distinct types of migratory movements that arrive at a particular country, and fails to consider key elements, such as country of origin, socio-economic status, and professional training, among others. These elements form distinct groups or categories of migrants, which, in turn, shape the myriad and complex ways migrants experience vulnerability. In addition, the fact that the legal regulation of immigrants is based on the recognition of state sovereignty tends to render their status as rights holders invisible. Rather, immigrants become mere objects of rights, and are assigned different normative rights that vary according to specific administrative situations. This is, in fact, incompatible with the claim of universality of human rights. A prevailing framework in the regulation of immigrants’ legal status is the concept of alterity – understanding the migrant as an “other.” That openly contradicts the ideal of equality guaranteed by modern legal systems. Moreover, states, and citizens, in defending state sovereignty, have both used this concept as a requirement for belonging to a political community. Migrants’ vulnerability springs from this politico-legal and social category of “difference,” which sets immigrants apart from national citizens with full legal status, thereby reinforcing certain disadvantages. The mere fact that states can establish a special legal regulation and configure the migrant category in a way that is in stark opposition to that of national citizens, puts at risk both the so-called universality of the declarations of rights and the conditions for subjects to be the holders of those rights. The legal status of immigrants is thus conditioned by denying them nationality or citizenship, and consequently denying them other rights. “Foreigner” is a category shaped by the principle of exclusion, the non-national, the one who cannot claim belongingness to a national community. This denial is the first of a series of abuses that affect immigrants, and it is one that cannot be solved without eliminating the distinction between national and foreign. It is, thus, necessary to move toward legally regulating immigrants’ rights, conceptualizing immigrants as belonging to a political community outside of the premise of nationality. In other words, nationality should not justify the existence of differentiated legal statuses, which, in turn, structure categories of

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persons that exclude each other: those who belong to a political community and those who do not. It is also worth considering that we are living in a historical socio-cultural context in which the very notion of citizenship is under review, due to the plurality and complexity of contemporary communities as well as the high number of migratory flows that characterize the current stage of globalization. The tension between the sovereignty of states and immigrants’ human rights, which is manifested in international regulations, should ultimately favour the people and not the states. If we are seriously advocating for equality among all people, as holders of rights, it then becomes unacceptable for there to be any kind of gradation in how these rights are exercised, which depends on the administrative status of each migrant. In other words, it is unacceptable for a second-class citizenship to arise, where the exercise of political, social, and labour rights depends on the administrative situation of each individual migrant. The solution to this problem requires a combination of two factors that appear, in principle, contradictory: a) that migrant groups are not a homogeneous category, but differ from each other as a result of different material conditions. Therefore, the rights of immigrants cannot be abstractly regulated; and b) that the statute of rights cannot depend on the administrative situation of each individual immigrant. There must be criteria that, considering how particular daily material conditions shape the ways in which rights are applied and enforced, conceptualizes immigrants as subjects of rights and not as mere objects of legal regulations. In short, just as it is necessary to guarantee equal rights, the guarantee for an egalitarian exercise of these rights must consider the variables that emerge from the material conditions of people’s livelihoods.

2 C h a n g in g Im m igrati on Flows The development and socio-economic stability of Chile in recent decades has shaped the country as an attractive migratory destination. This is illustrated by several macroeconomic measures, such as a gross domestic product close to that of developed countries, reasonably stable inflation, and a labour market with a low unemployment rate. These factors have led to a progressive increase in migrations to the country, placing Chile as one of the main destinations in Latin America.1 Alongside these internal factors, it is possible to identify other external factors of equal importance. The economic crisis in some

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European countries has encouraged new migratory flows and shaped a phenomenon different from that of the period of the nineteenth century European wars. In addition, Chile’s participation in the United Nations (U N ) Stabilization Mission in Haiti generated migratory expectations among the local population, with Chile becoming a new destination country as a result of its political and economic stability. This placed ethnicity as a new institutional challenge, reinforced with place-specific realities. For example, the predominantly AfroColombian communities residing in Antofagasta reached 6.9 per cent of the national total in 2014.2 Overall, the belief that migration affects the developed world almost exclusively has continued to be refuted. The World Bank’s report on migration and remittances shows that the volume of migration occurring among developing countries is greater than that verified in countries belonging to the Organisation for Economic Co-operation and Development (O E CD ).3 Chile takes part in this specific type of migration, which could contribute to the country’s economic and social development.4 The available Chilean governmental data presents a fairly clear picture: the country’s immigrant population has experienced a steady growth. Temporary residence permits have increased by approximately 20 times: from 41,985 permits granted in 2005 to 838,573 permits granted in 2014.5 A similar trend occurs in definitive residence permits granted during the same period – permits increased from 11,907 to 222,475.6 Since then, definitive residence permits have increased significantly every year: 53,597 were awarded in 2016; 87,751 in 2017; 93,028 in 2018; and 88,526 in 2019. It was also estimated that 1,251,2257 foreign individuals resided in Chile in 2018. By 2019, this figure had reached 1,492,5228 individuals, representing a little over 9 per cent of the national population. Unfortunately, besides these figures, Chile does not have sufficiently reliable census data on the scope of the immigrant population, given that information on immigrants’ entry and stay in the country is not properly organized among the ­different institutions that manage it. Despite this, the evidence shows that migration is a growing social reality in Chile. The official figures predict an immediate consolidation of the migratory phenomenon and, consequently, an imminent reconfiguration of local social structures. Even as the hidden figure of irregular immigration distorts quantitative analyses, it is undeniable that it needs to be considered. This reinforces not only the need to

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qualitatively analyze a legal regime that affects hundreds of thousands of people, but also the emergence of a phenomenon that falls outside traditional regulations.9 The progressive expansion of migratory flows has shaped the formation of migratory networks, another stage of the demographic transition.10 This refers to the consolidation, in small communities, of the first resident immigrants, whose social and labour stability generates new incentives for future immigrants. The expectation of being received in a community of fellow nationals facilitates the labour and social insertion of those who decide to leave their countries of origin, gradually increasing the quantity and frequency of migratory flows.11 This stage is followed by the “cumulative causation” phenomenon,12 when the original causes of migration are diluted and give way to what has been called a culture of permanent migration.13 This succession of stages reconfigures the structure of host societies, especially communities in which immigrant networks are incorporated. Along with the emergence of new social agents, who will progressively also become political agents, the changes in the social relations produced by immigration will inevitably modify the normative criteria, which will, in turn, regulate these relations. It is also necessary to consider how the material conditions through which immigrants exercise their rights, in fact, configure the application of a whole legal statute of their own. This occurs despite the fact that the normative recognition of fundamental rights does not distinguish between Chilean and immigrant holders, as stated in Article 19 of the current Chilean Constitution. The inevitable transformation of social structures, due to the consolidation of immigrant networks, particularly in local communities, draws attention to the configured migratory network of the Peruvian community living in the capital city of Santiago.14 The imminent expansion of immigrant networks to other communities places Chile close to the immigration threshold estimated by the U N , equivalent to 3.1 per cent of the national population. In fact, the communities of Latin American immigrants have organized themselves into a collective known as the Movimiento de Acción Migrante. The collective seeks to influence public policies, and has requested a new immigration law and an immigration amnesty to regularize the status of all foreigners in an irregular migratory situation. More recently, the increase in Haitian and Venezuelan immigration has led the current government to establish a differentiated visa system for both countries. In the case

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of Haitians, Circular No. 95 of April 2018, which was passed by the Under-Secretary for Foreign Affairs, requires the processing of a visa at the Chilean consulate in Port-au-Prince. In the case of Venezuelans, the democratic responsibility visa was established via Circular No. 96 of 2018, which sought to facilitate visa processing and extend the deadlines of permanence in the country. The implementation of the democratic responsibility visa has had important repercussions on migratory flows. According to official statistics, 455,494 Venezuelans were estimated to live in Chile in 2019, a significant increase from the previous year, which totalled 288,940 individuals.15 These numbers reflect the staggering increase of visas granted by the Chilean government to Venezuelan citizens in the last two years (2016–17). Between 2000 and 2013, granted visas circled around 1,000 annually. By 2014, however, visas numbered 2,908, and in 2015, 8,479, reaching 22,000 in 2016 and, in 2017, more than tripling, reaching 72,290. In the last few years, as a result of the establishment of the democratic responsibility visa, which was implemented by President Sebastián Piñera in March 2018, more than 300,000 Venezuelans have received a visa. In 2018, the numbers reached 144,081, and in 2019, 159,539. If we were to include tourism entries, which do not require a visa, and the hidden figure of irregular migration, these numbers could be even higher. It is worth noting that, during the same period, definitive residence permits also experienced a significant increase. Up to 2012, fewer than 1,000 permits were granted, yet, by 2019, 33,456 permits were granted in that year alone. In the last 20 years, 82,242 definitive residence permits have been granted. However, despite that explosive increase, individuals with granted permits represented a mere 18 per cent of the more than 455,494 Venezuelans citizens living in Chile in 2019, according to government estimates. Overall, it seems evident that the so-called democratic responsibility visa served as a strong incentive for Venezuelan immigration to Chile, one that altered migratory flows in recent years, despite the upward trend observed since 2015. It is not possible to be certain about the conditions in which the Venezuelan community residing in Chile currently finds itself, given the lack of national regulations to promote the integration of migrant communities, as well as government monitoring. However, we do know that Venezuelans in Chile constitute the largest resident foreign community in the country, and that this community has a varied socio-economic composition. The relatively low

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percentage of residence permits among Venezuelans in Chile sheds light on their broader instability and vulnerability.

3 C u r r e n t L e gi s lati on o n Im m ig r at io n a n d Nati onali ty The continuous increase in migratory flows evidenced in recent years complicates implementing a legal system that was originally designed under a different paradigm, hinting at its inadequacy to meet the challenges of a new social reality. Current legislation on the matter is the Immigration Law (Decree-Law No. 1,094 of 1975), and its respective regulations, as well as Supreme Decree No. 597 of 1984, and its amendment via Supreme Decree No. 1,930 of 7 March 2015 by the Ministry of the Interior and Public Security. This modification approved the regulations for the new immigration law, together with other specific regulations, as well as a varied administrative regulation through trades. Although several bills have been submitted with the aim of reforming the 1975 law, this legislation has been in place for four decades. One of the oldest in South America, this law responds to a socioeconomic reality belonging to a different historical context, both with respect to the prevailing political conceptions related to immigration as well as the quantitative and qualitative differences that migratory flows represent for the country nowadays. The discrepancy between the particular historical context of the conception of this law and the current one has specific concrete manifestations in two particularly sensitive matters concerning the exercise of immigrants’ rights: on the one hand, the principles of the legal regulation in question; on the other, the system of distribution of competencies. The Chilean immigration regime recognizes four categories of entry into the country: tourists, residents, official residents, and immigrants. A tourist is a person who does not have any intention of residing, or performing any economic activity, in the country, and is given a permit for a maximum of ninety days, which can be extended. Residents can have temporary and definitive residences. Examples of the former are: subject to contract, temporary, student, and official (corresponding to official or diplomatic residents). Foreigners, who have obtained a resident visa as holders of one of these categories, may request a change for a different category. Current immigration legislation also grants the possibility of changing that status for those who have

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acquired visas as dependents, either by becoming holders or exchanging it for another type of visa. In addition, permanent residence is granted to foreigners who are residing in the country indefinitely, thus allowing them to practise any lawful activity. However, Chile does not apply the reciprocal Southern Common Market (MERCOSUR) norms of regularization and visas. Finally, for naturalization processes (or “nationalization,” as established by the 1980 Constitution), Decree No. 5,142 of 1960 regulates how foreigners may acquire Chilean nationality. This decree sets the revised text on the provisions for the nationalization of foreigners. This anachronistic norm is no different from the rest of the country’s migratory regulations, which are typical of a historical context where the migratory phenomenon presented radically different characteristics to those that Chile now faces. For the time being, this regulation does not facilitate nationalization procedures or contemplate norms for the protection of stateless individuals. 3.1 Theoretical Foundations of Current Legislation Enacted in 1975 during Pinochet’s dictatorship, Decree-Law No. 1,094 regulates immigrants’ rights, such as admission and deportation procedures. Like other Chilean legislation drafted between 1973 and 1990, this law was approved by a de facto regime, although it was partially revised and modified by succeeding democratic governments. This means that the theoretical foundations of the law continue to be based on a historical context influenced by the Cold War and the progressive implementation of a neoliberal political model. The theoretical foundations of this legal document are incompatible with a human rights paradigm, because it conceptualizes immigrants as threats to the internal security of the state. This political notion is exacerbated by a regulation passed no fewer than two years after the 1973 coup d’état, during a regime that, from the very beginning, sought to control the flow of people across its borders, both Chilean nationals leaving the country (voluntarily or forced) and those who sought to enter. Such a stance explains the broad powers of the administrative authority to authorize or reject the entry of foreigners into the country, as well as enforce deportation measures, which were extended by the Supreme Decree No. 597 of 1984. Both regulations – Decree-Law No. 1,094 and the 1984 Regulation – remain in force.

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In 2008, Presidential Instruction No. 9 was issued, which contained the “Instructions on Immigration Policy.” In this document, administrative entities were instructed to include international agreements and treaties on migrants and refugees in their programs, in an effort to advocate for a form of migratory governance that was based on the fundamental rights of the population. On a similar note, via Supreme Decree No. 1,393 of 2004, the Immigration Policy Council was created as an advisory and liaison body for authorities and civil society, respectively. The council was only constituted in 2014, met on only one occasion, and was dissolved during the first half of 2018 by the administration of President Piñera. In May 2013, the executive presented a bill to replace Decree No. 1,094.16 In his bill, Piñera emphasized the need to reformulate current immigration legislation into a highly dynamic alternative that was sensitive to the economic and social development of globalized society, where the economic development of Chile, as well as that of other countries, constitutes a key factor in creating favourable material conditions for the new migratory phenomenon.17 In Piñera’s opinion, the processes of commercial opening “have not been followed by the modernization of the regulation of human mobility in the context of a global market. As far as that is concerned, the country still maintains the protectionist and fearful view of the 1970s.”18 Although the project recognizes that the legal regime in effect since 1975 was conceived in relation to issues of national security,19 its attempt to shape a new institutional apparatus that follows the guiding principles of the area that it intends to regulate is not an advance. Indeed, the project continues to keep migratory institutions dependent within the Ministry of the Interior and Public Security.20 This can lead to problems since there is a lack of commitment to an understanding of migration that considers, for example, transferring migratory institutions to other ministries, such as those of Foreign Affairs, Social Development and Family, or Labour and Social Forecast. These ministries seem closer to the current paradigm in the field, protecting the rights of immigrants and incorporating them into local communities. It is possible that this definition shows the absence of sufficient theoretical tools to adequately address the current challenge of contemporary migration. That would allow the phenomenon to be approached from the perspective of the complex process of integrating a foreigner into a local community, not only from the perspective of order and internal security.

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In 2015, President Michelle Bachelet issued a new Presidential Instruction (No. 5), which outlined the guidelines and instructions for the National Migration Policy. This norm established fifteen main structural axes based on the recognition of the right to migrate as a human right. Unlike the 2008 document, instructions were given to the different branches of the state to create a comprehensive national migration policy and strengthen their institutional frameworks. However, the National Migration Policy demonstrates the distance between the current regulations and the new international standards.21 As a result, the U N Human Rights Council has suggested to the Chilean state that the state “accelerate the approval of the bill on immigration that fully guarantees the rights protected by the pact.”22 Focusing mainly on public and internal state security, during the 2017 presidential election, several candidates manipulated the discussion on new immigration regulations that year to their own political benefit. This media-heavy strategy has artificially conflated migration with crime, and planted the seed for discussions about possible migratory quotas, or establishing categories of migrants determined by the convenience of or utility to, the country, clearly contradicting the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Currently, the bill presented by President Piñera in 2013 is being discussed in the legislature. Although several modifications have been introduced to this draft, no definitive improvements have recently been registered. Thus, migrants’ vulnerable condition, which is subject to uncertain situations throughout their entire migratory route, is increased by the insufficiencies of the law to confront the migratory phenomenon, as will be seen below. Faced with the pressures of a constantly rising migratory flow, national regulations seem to be unprepared to take on the challenges of this new migratory context. In fact, the creation of legal regulations for migrants must reflect the immigration policies adopted by the receiving state,23 especially in guaranteeing the exercise of migrants’ fundamental rights once they have entered the national territory. The new regulations for refugees and victims of trafficking (a result of the international commitments for the protection of immigrants’ rights signed by Chile)24 are based on fundamentals different from those in the 1975 Immigration Law. Once again, this demonstrates the urgent need for a rigorous and systematic legislative revision. The configuration of this new social, economic, and

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cultural reality, resulting from the increase in migratory flows, poses an obvious challenge to Chilean immigration institutions. After a long discussion in Congress, on 20 April 2021, the new Immigration and Alien Law, Law No. 21,325, was published. However, in its tenth and eleventh transitory provisions, the regulation provides that the law will enter into force only once the former is published. This means, as provided for in the fifth transitory provision, that the immigration categories established in Decree Law No. 1,094 of 1975, which establish the norms for foreigners in Chile, will prevail until the Supreme Decree that defines the immigration subcategories is passed. In other words, the 1975 internal security paradigm of the 1975 Decree Law will be maintained and, even worse, enforced. The tensions between the current legal system and the size of migratory flows have been discussed at the constitutional level. The Constitutional Court (TC) ruled that the 1975 Immigration Law was a pre-constitutional and pre-conventional norm, whose normative structure “admits massive violations of rights.”25 The T C also concluded that, since Decree-Law No. 1,094 “was dictated in a period when the theory of the rights of entry and exit of people was dominated by a hegemonic national security perspective, it must be contrasted in the light of the constitutional text.”26 In other words, the TC confirms the need to revise the national security paradigm that conceptualizes the foreigner as a mistrusted “other.” The tenth paragraph of the constitutional declaration explicitly states that the starting point for any analysis should be the right to migrate from the country of origin, while at the same time giving the laws of each state the possibility of regulating the way in which that immigration is received. The latter point should always be subject to full compliance with international standards that govern the matter. In this way, the “fear of foreigners” paradigm changes, progressively, toward a rights-based approach for foreigners’ entry into and stay in the country. In the absence of a national migration, or immigration, policy, many public services, along with regional governments, have created various local and regional projects for integrating migrants to meet their basic health, education, and housing needs from a multicultural perspective. Thus, specific measures, such as special protections for mothers, and agreements that facilitate access to nursery, school, and the public health system for children and adolescents, all establish special processes of migratory regularization or of access to child protection

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networks. In addition, administrative mechanisms have been established to facilitate visa applications for victims of human trafficking, civil unions officiated abroad, and for employment purposes. Once again, this shows the wide margin that the absence of adequate legislation has created for rulemaking, even though the Constitution asserts that the law can only establish the exercise and limitation of fundamental rights. Without contradicting outdated legislation on regularizing immigration, Chile has introduced regulatory changes to comply with international standards on migrants in situations of greater vulnerability, such as refugees and victims of trafficking. For these purposes, laws have been enacted in these matters after the U N made observations to Chile.27 Although these norms follow different foundations and objectives, their application has been coupled with existing regulations without being adequately harmonized between different institutions. Based on the international standards of the 1951 Convention Relating to the Status of Refugees, its Optional Protocol of 1967, and the Cartagena Declaration on Refugees (which includes an expanded definition of refugee, the principle of non-refoulement, confidentiality, and international protection, among others), Chile issued Law No. 20,430 in 2010, making the mandate, and its international commitments, operative. This law establishes the right to access standardized procedures for the application for asylum in accordance with international protocols. While this does not mean that all applicants are recognized as refugees, it does allow them to have basic guarantees of due process when they are entering the country of destination. The national approach to the trafficking of persons and the smuggling of migrants, however, is differentiated. In 2005, Chile ratified the U N Convention against Transnational Organized Crime, and its Optional Protocols, together with the Palermo Protocols, to prevent, suppress, and punish human traffickers, especially those who traffic in women and children. It is a well-known fact that human trafficking is a form of modern slavery that affects men, women, children, and adolescents who are forced, threatened, and / or deceived to perform various forms of exploitation, either sexual or labour. This causes serious damage to their physical and psychological integrity and, in some cases, even puts their lives at risk. For this reason, in 2011, Law No. 20,507 was enacted, to define the crimes of smuggling of migrants and human trafficking, in addition

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to establishing special rules for their prevention and more effective criminal prosecution. This new legislation introduced modifications to the Chilean Criminal Code, creating new categories of criminal types of illicit association for human trafficking and of trafficking for the purposes of sexual exploitation, reflected in Article 411 quarter.28 The preceding articles (411 bis and ter of the Criminal Code) typify the crime of trafficking of migrants, understood as facilitating the illegal entry of a person to a state, where that person is not a national or permanent resident, to obtain, directly or indirectly, a financial benefit or other form of material benefit. This definition is in accordance with the definition given by Article 3 of the Protocol against the Smuggling of Migrants by Land, Sea and Air, which complements the U N Convention against Transnational Organized Crime.29 The importance of this distinction lies mainly in how victims of human trafficking are defined, which determines who requires special state protection. In this sense, human trafficking is considered a serious crime because it is a violation of the human rights of individuals and a direct attack on their human dignity. In addition, the smuggling of migrants is considered a crime against the state, because it violates the immigration laws of the country of destination. Finally, it is necessary to point out that Chile does not have a specific legal regulation for migrant children that establishes an effective protection system for this population, who are subject to specific forms of vulnerability. Nevertheless, through agreements and / or administrative circulars, migratory regulations have been formulated in municipal schools, by implementing different local governments’ initiatives. In addition, sanctions against children and adolescents who find themselves in an irregular migratory condition, have been eliminated. For the African, Afro-Latino, and Afro-descendant populations in Chile, the recently enacted Law No. 21,151(2019) awarded legal recognition to the Chilean Afro-descendant tribal people. This law recognizes the cultural identity, language, historical tradition, culture, and institutions of Afro-descendants, as well as their unique worldview, and also establishes the duty of the state to respect and promote their traditional knowledge (Article 3). Furthermore, the law establishes special tasks to promote their integration into the school system (Article 4), and recognizes the right to prior consultation, as stated under the Internal Labour Organization’s Indigenous and Tribal Peoples Convention of 1989, in situations where legislative or administrative measures that might directly affect tribal people are considered.

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3.2 The Constitutional System of Distribution of Legal Competencies The legal regulation of the exercise of fundamental rights assumes an institutional guarantee in favour of rights, inasmuch as its regulation, or restriction, is verified by a democratic and public legislative deliberation, which is valuable in and of itself.30 Thus, the law serves the  purpose of creating rights, rather than simply applying the Constitution.31 More specifically, it is the legislator’s exclusive constitutional function to delimit both their own jurisdiction as well as that of other organs of the state, especially in relation to rulemaking. In fact, “the role of non-delegable legislation in a democratic state and its relation to fundamental rights weaken the normative powers of an administration in this context.”32 This scenario alleviates the possible tension that can emerge between both spheres of power. Despite the importance of this distribution of functions, determining the areas of jurisdiction in the relation between law and decree is not a peaceful issue in the Chilean doctrine,33 because it has created various theories related to the scope of the law and the decree.34 Regarding the protection of rights, the general rule in comparative immigration law is non-delegable legislation. However, according to the TC Sentence No. 2,273 (C.14, 2013), the Chilean system of distribution of legal competencies differs from that rule. Given that Decree-Law No. 1,094 is a pre-constitutional norm, which dates back to 1975, it does not respond to the jurisdictional logic found in Articles 19 and 26 of the current Constitution. Therefore, because there was no prior constitutional framework setting the legislator’s scope of action, the Decree granted broad powers to the administration that affect the configuration of immigrants’ legal statuses. These faculties even grant discretion on important matters, such as visas and permanent residences,35 whereby the reasonableness of the administrative decision is based on criteria established by a legal standard. However, it has been argued that rulemaking “can validly operate only in accordance with the details that the execution of the law requires,”36 to the extent that the configuration of the regulation in question has legislative competence. Consequently, under the current constitutional system of distribution of legal competencies, the legislator is the only actor who can determine the reasonableness of parameters that will define the purposes of the regulation and set its limits,37 by organizing the instruments of control.38 This issue goes beyond the principle of legality. It is part of a broader category of constitutional relevance,

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which is the model overseeing concurrent jurisdiction in the protection of fundamental rights.39 This relationship between law and regulation creates a tension in immigration law in Chile. For example, it is ever-present when discussing the configuration of the causes that prevent the entry of a foreign citizen into the country. Article 28 of the Supreme Decree No. 597 of 1984 goes beyond the Decree-Law No. 1,094 of 1975, by delegating, in another supreme decree, the competence to establish new prohibitions, which are based on reasons that are not contemplated in Decree-Law No. 1,094. Decree-by-decree jurisdiction not only violates the constitutional principle of non-delegable legislation, as a guarantee to the exercise of fundamental rights, it also exceeds the constitutional framework of the regulatory power of execution. The need to standardize the criteria to apply the legal framework, which defines immigrants’ legal status, is evident. Applying legal grounds for expulsion or deportation must be compatible with the protection of immigrants’ rights, in accordance with what is expressed in the jurisprudence of the Inter-American Commission on Human Rights (IACHR).40 The purpose is to reduce the degree of administrative discretion by typifying sanctioned behaviours and identifying how the requirements imposed on immigrants affect their rights. Chilean immigration law requires a reconfiguration on the exercise of concurrent jurisdiction that follows the guiding principles of immigration public policy already declared in the National Migration Policy,41 especially since these institutional elements are important for ­adequately protecting immigrants’ rights.42 On 11 July 2014, the Immigration Policy Council43 was created to implement the guiding principles of Chilean immigration policy.

4 T owa r d a R e c o n fi gurati on of t h e L e g a l S tat u s of I mmi grants The above-mentioned evaluation is justified due to a set of concrete difficulties that appear both in the design and in the implementation of migratory institutions in effect in Chile, which have lowered current standards of protection for immigrants’ rights.44 Out of the many difficulties associated with configuring the legal status of immigrants, in this work we will review only three: a) the guarantee of equality in the exercise of rights, b) the relationship between administrative ­discretion and equality before the law, and c) the deficiencies of administrative procedures.

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4.1 Equality in the Exercise of Fundamental Rights Although the Constitution does not explicitly refer to the migration phenomenon, Article 19 indexes a generic guarantee of equality in the exercise of rights. In agreement with the TC, the generic protection of rights-holders allows us to conclude that the Constitutional Charter “not only does not discriminate against foreigners but it also recognizes them as full holders of rights.”45 Thus, although there may be wellfounded reasons to justify a differentiated regulation between nationals and foreigners when they enter the country, the normative distinctions on the exercise of rights must be duly founded once their stay, or residence, is legally authorized. In fact, the status of “foreigner” encompasses a set of categories, which are subject to arbitrary discrimination, such as race, ethnicity, language, and, of course, nationality.46 A regulation that restricts the exercise of rights based on these categories should, thus, have some kind of prior constitutional authorization.47 As a fundamental right, the guarantee of equality before the law outlaws all normative differences based on individual attributes. The constitutional guarantee of equality before the law does not assume that all people must be treated in the same way. On the contrary, it seeks to guarantee that the reasons invoked for establishing such ­differences be reasonable. This means that they must be compatible with the constitutional standard of protecting fundamental rights. Consequently, the Constitution does not prohibit all normative differentiations, but only those that are arbitrary.48 In this way, the phrase “equals should be treated equally” fails to meet the guarantee-of-equality-before-the-law standard, because it appears insufficient for assessing the legitimacy of differential treatment for those who, objectively, would be in a different position. Such is the case of immigrants. This type of argumentative logic disregards the central axis of arbitrary discrimination: the reasons that justify the formation of equal, or different, categories of people. Certainly, nationals and immigrants can be incorporated into different groups, to the extent of having differentiated legal statutes. However, it is essential to evaluate whether this objective difference, based on nationality, can justify restrictions on the exercise of differentiated rights for both categories of subjects. In fact, insofar as the legal system establishes differentiations based on so-called suspicious categories, these should support positions of legal vulnerability, to guarantee the adequate conditions for effectively

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exercising these subjects’ rights. Thus, the measures adopted by the legislator must be compatible with the guarantee of equality before the law.49 Regarding the definitions of rights and of the legal status of immigrants, the legislator of 1975 operated in the absence of prior constitutional qualification and complicated the guarantee of equality before the law. As a result, the TC stated that the category of “foreigner” is prone to cases of arbitrary discrimination, which resulted in the TC demanding a strong legal argument to justify that a differential treatment would allow constitutionally legitimate goals to be achieved.50 The set prohibitions on the exercise of fundamental rights should thus have an explicit constitutional authorization – an issue that does not exist in Chile’s current constitution. In turn, these restrictions fall under the legislator’s jurisdiction, and the limits to the regulatory powers of the administration are part and parcel of the guarantee of equality before the law. This dimension of non-delegable legislation is part of the international standard that applies to the protection of immigrants’ rights, which ensures that foreigners will receive the same treatment as nationals once they have legally entered into the state’s territory. However, in practice, it seems that “the nature and intensity of fundamental rights is modified, especially in the case of an immigrant” with intentions of staying permanently.51 This affects the material conditions for the exercise of migrants’ fundamental rights, even when their migratory situation in the country is regularized. In fact, the current legal status of immigrants does not provide for important aspects that may affect the exercise of their rights, although “there is no relevant distinction regarding the exercise and ownership of rights between nationals and foreigners.”52 As a result, a restrictive interpretation of any normative distinction prevails. The T C has estimated that any regulation that restricts the exercise of fundamental rights in this matter should be particularly justified, insofar as it includes suspicious categories of arbitrary discrimination,53 especially in the absence of prior constitutional authorization.54 4.2 Relationship between Administrative Discretion and Equality before the Law Current regulations on migration affect the right to equality before the law because of the broad discretionary power given to the administrative authority – the Ministry of the Interior and Public Security – by

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Decree-Law No. 1,094.55 In this case, the grounds for expulsion are based on open and undetermined legal concepts, such as “utility” or “convenience.” Moreover, these concepts are to be examined directly by the official who applies the rule. The same scenario unfolds with the legal grounds for expulsion and prohibition of entry, since these provide wide margins for administrative discretion. That is a result of sanctions being justified to protect the legal interests pertinent to the state, such as national security, public order, and safety, among others, rather than with legal criteria, which could guide the official’s consideration or proportionality in determining and applying such measures. While a formal generic equality between nationals and immigrants exists in holding and exercising rights, this equality may be materially affected by the exercise of the broad powers of authorities to grant and extend visas, as well as to grant definitive residence permits.56 Similarly, the Regulations of Decree-Law No. 1,094 reinforce the wide margin of administrative discretion that the immigration authorities enjoy when resolving some type of temporary or permanent residence permit for a foreigner. In this regard, the regulations state that “these powers shall be exercised discretionally, taking into account, in particular, the convenience or utility of the granting of these permits for the country and for international reciprocity, following a report of the Investigations Police of Chile when appropriate.”57 If the creation and development of legal concepts is subject to administrative discretion, the protection of migrants’ equality before the law could be largely determined by the categories that the administration might apply to each specific case. The effect on the exercise of migrants’ rights could be verified insofar as the powers contained in Article 13 of the Decree-Law – which sets the parameters for the granting of visas, their extensions, or permanent residence permits – were set by the administrative authority with exclusive consideration to the particularities of each specific case. These considerations should consider, as a special determining factor, the convenience or utility that the concession of entry might generate for the country, which affects the guarantee of non-arbitrary discrimination. This guarantee does not assume identity among subjects before the normative regulation of their juridical relations, but requires an additional demand of argumentation and reasonableness when normative differences are established by virtue of identifiable personal characteristics in groups of determined subjects. This requirement of reasonableness presupposes substantiating a normative difference, verifying that it does not fit in the category of arbitrary discrimination.

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Consequently, it is necessary to establish rules and general criteria that have been previously assessed by the legislator and are compatible with the Chilean constitutional order and international law.58 This will allow clear criteria for the jurisdictional control of administrative decisions to be set and to protect migrants’ rights more effectively.59 An illustration of the lack of control on discretion can be observed in the decision of consular offices to grant or refuse residence visas.60 The power of the consular offices to grant or refuse residence visas is based on generic causes with a wide margin of discretion, as is the case of the “convenience” or “utility” that the granting of resident visas generates for the country. Thus, in these cases, the relevant entity is not the Ministry of the Interior and Public Security but the Ministry of Foreign Affairs. This creates a greater degree of discretion on the part of the administration, since there are two authorities empowered to grant these concessions, each governed by normative bodies and determination criteria that obey different migration policy guidelines. In this regard, a sentence of the Supreme Court of Chile has stated that the exercise of these powers requires reasonableness in the authority’s decision, as well as respect for individuals’ rights.61 Following the arguments of the TC in Sentence No. 2,273, the Court has affirmed that the “utility” dimension in the exercise of this competence should be the “utility” of the individual, not that of the state, given that human development is prioritized. This is a sensitive matter because of the risk that the wide margin of discretion might evolve into arbitrariness. Faced with this danger, it is necessary to identify or build certain limits around that decision. In this regard, in Sentence No. 2,273, the T C states that “for the International Law of Human Rights, it is inadmissible to conceive the administrative authority of admission of foreigners to each country solely from the point of view of the internal public order and solely as a security police measure” (C.13), thereby incorporating a rights approach in administrative decisions (C.40). The urgency to review the legal status of immigrants in Chile is evident since the discussion in comparative law is no longer focused on the issue of equality before the law, but is centred on the challenges that immigration poses for integration.62 The theoretical foundations of the current Chilean legislation do not sufficiently satisfy the new standard referred by the TC ,63 especially as new immigrant enclaves eventually consolidate,64 as hermetic communities, that affect the integration process. Currently, expulsion procedures are not processed following legal norms, which affects the guarantee of rights, such as the right to no

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discrimination and to due process. The same situation is evident when visas are denied, because these are not duly regulated before the law, thus opening an important margin for administrative discretion, which, once again, can result in arbitrariness. Recent jurisprudence has identified specific criteria destined to protect migrants’ right to personal freedom. Among them, we highlight the rights to protection of one’s family and family reunification, the legality of expulsion orders, and the need for justification, or proportionality, as mechanisms against arbitrary action and to protect migrants against arbitrary discrimination. The duty of states to respect the rights of people to live in a given territory, and to transit within it, holds special force, especially if individuals have entered legally or if their migratory situation has been regularized. In this sense, expulsions and visa denials must constitute sufficiently justified measures, given that they must protect due proportion in the fundamental right of individual liberty, the exercise of which is affected. Despite the legal efforts to generate somewhat standardized criteria for expulsion orders or the denial of visas, the effect on the protection of the rights of migrants is marginal, given that the majority of those deported from the country, or whose entry is denied at border controls, are not able, for different reasons, to initiate a legal procedure to protect their rights. The hastiness associated with border crossings prevents migrants from filing legal complaints against the illegality of entry prohibitions. This poor access to justice constitutes a structural infringement of the rights of people who migrate to Chile, given that the discretional application of the causes of expulsion, or entry denial, do not have adequate mechanisms to control the exercise of such competence, giving room to arbitrary discrimination, mostly due to gender- and race-related causes.65 The indeterminacy of legal criteria seems to be the main threat to the exercise and protection of migrants’ rights; even though Chilean norms recognize the validity of the minimum rights established at the international level, the truth is that, de facto, the mechanisms of migratory control contradict these rights.66 4.3 Administrative Procedure Deficiencies One of the determining elements in guaranteeing the exercise of migrants’ rights is establishing a standardized administrative procedure, which must have a supplementary regulation that addresses the gaps left by sectorial legislation, yet does not leave them to administrative

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discretion. Considering that the regulation of administrative procedures was not a priority for the Chilean political regime at the time, DecreeLaw No. 1,094 of 1975 does not establish an administrative procedure according to the rules of due process, and leaves a wide margin of discretion when determining the applicable sanctions (e.g., Article 13). Current sectorial legislations do not regulate bilateral hearings, the presentation of evidence, or the right to defence, notifications, and resources.67 Even though there is a supplementary regulation in Law No. 19,880, the practical application of the law has consolidated several gaps and created a general lack of protection for the exercise of immigrants’ rights. The concept of presumption of innocence is itself in question whenever migrants become aware of this process when notified about their expulsion. In fact, immigrants are not notified when a sanction procedure is initiated. That would allow immigrants to prepare their defence or present evidence to face the administrative decision. Regarding the procedures established in regulatory provisions, the Comptroller General of Chile (CGR) declared that Law No. 19,880 – of a supplementary nature – is in full force, thus gener­ating the repeal of incompatible regulatory provisions.68 The C G R affirms, “the direct application of the aforementioned Law No. 19,880 is necessary in the case of special procedures developed in regulatory legislations, even when their existence is a result of regulatory powers being expressly invoked by legal norms.”69 Chilean migratory institutions do not fulfill this standard. Indeed, in the absence of an established and objective administrative process, the administrative authority does not consider certain aspects, such as family ties, judicial precedents, and vulnerability or danger of return of migrants to their countries of origin, when enforcing an administrative sanction. Thus, the decision to grant a permit or apply a sanction is subject to the will of the administrative authority, without complying with the minimum standards of due process, which are laid out in the country’s constitution and in international treaties that deal with the matter. Access to justice is also diminished since it is only possible to appeal an expulsion via an exceptional jurisdictional procedure before the Supreme Court within twenty-four hours of being notified.70 Migrants may be deprived of their liberty while the appeal is being resolved. This measure is not decreed by a court of justice but, rather, by the competent administrative authority. That represents an appeal of last resort, which does not apply to expulsion measures issued by regional immigration authorities or expulsions exempted from resolutions.71

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In short, no legally established procedure satisfies the elements traditionally identified as constitutive of the constitutional guarantee of due process, both by doctrine and by constitutional jurisprudence.72 The observations offered by the Universal Periodic Review to the Chilean state report on the matter: [T]here are no minimum guarantees of due process for migrants and their families according to international standards, as there are multiple cases concerning the deprivation of freedom for undocumented migrants, without a clear timeline, and without judicial control or translator present in trial. These are based on orders issued by the administrative authority and executed by the police force. Moreover, the lack of guarantees also includes collective expulsions that fail to take into consideration the ­family unit.73 Without diminishing the power of states to regulate immigration flows, recent jurisprudence, outlined in the following paragraphs, has pointed out that the practices and regulations of states must consider the guarantee of protection of immigrants’ fundamental rights, both via internal systems and the various instruments of international law.74 The Supreme Court has also applied international treaties that deal with human rights, even over domestic legislation, through the activation of Article 5.2 of the Chilean Constitution. This move has made it possible to extend the range of protection of immigrants’ rights, both to those with pending administrative measures of deportation or expulsion, as well as to their immediate families, such as their spouses and / or children. In 2016, the Supreme Court invoked two provisions of the UN Convention on the Rights of the Child to suspend the effects of an expulsion order: Article 2.2, which requires state parties to guarantee that children will be protected against all forms of discrimination or punishment as a result of their parents’ actions; and Article 9.1, which orders state parties to ensure the non-separation of families.75 The Supreme Court itself has also taken family into consideration as a decisive factor when revoking an expulsion order. Such is the case of a couple with Peruvian citizenship, who were criminally convicted in Chile for immigrant trafficking and were the parents of two children born in Chile. By suspending the effects of the expulsion decree, the Court stated: “[T]he analysis of this Court is not extinguished with the review of the observance of legal formalities and the subsumption

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of the factual hypothesis in the invoked normative supposition. Rather, the analysis transcends these and compels the Court to carry out a careful examination regarding the personal and procedural situation of the affected parties, and the effects that would be definitively inflicted upon their families with the execution of this measure, on the one hand, and the national interests protected in the Immigration Law, on the other hand.” 76 Thus, the Court agreed to the request of the Peruvian couple, considering that: “The reasons invoked by the concerned parties – which encompass the need for their oldest son to finish the school year, as well as the difficulties associated with moving to another country with two minors –merit the granting of the request term, which does not hinder what has already been decided by the Ministry of the Interior and Public Security, in use of its faculties, and is consistent with due respect for international standards for the protection of children.”77 The disparity in the content of both sentences by the Supreme Court shows how the absence of legally assessed criteria generates uncertainty for migrants and their families, which prevents their rights from being adequately protected.

5 C o n c l u s io n s: The Need f o r C o n c r e t e Reforms The evidence shows that there is a very clear problem that affects the exercise of immigrants’ rights, both in migration legislation and in the responsible migratory institutions, which must be investigated systematically and rigorously. Chile is one of the countries that is not prepared to face the challenges brought on by the globalization of migratory flows. Throughout the forty years of the entry into force of Decree-Law No. 1,094, no theoretical tools have been built to produce a new normative paradigm to successfully face the challenges of the current migration phenomenon. The need for “an adequate development of our positive law and a framework within the ‘international minimum standard’ framework, which prescribes general and conventional International Law” has already been noted.78 The current normative design presents a series of problems and difficulties that must be addressed in a systematic way, both at the level of legislation and their regulation, and should be discussed in relation to the guarantee of the exercise of the rights of immigrants. This shortcoming must be approached with rigour, because the theoretical and bibliographic tools exist and are already available in comparative law.79

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The need to respond to the current reality of migratory flows has caused the administrative authority to regulate the granting of special visas, taking into special consideration the vulnerable situation of migrants, their personal relationships, and their employment and economic situation in Chile, and applying international treaties on the subject. However, the administrative regulation of these permits generates insecurity for both immigrants and the administration.80 This is because any measure is subject to the will of the current authority, who can use the same instrument to leave them without the authorization applied by the migrant or include more requirements for their access. Once again, there is an excess of administrative discretion in these matters that is granted by non-delegable legislation. The current theoretical and normative model does not meet the current needs of Chile’s migratory reality, particularly in exercising and protecting immigrants’ rights against administrative action. Consequently, this creates a significant discrepancy from the standards established in international law, a topic that has been a matter of interest for, and reported by, several international organizations. Current Chilean migration institutions are the product of deeply rooted cultural structures of discrimination, distrust, and segregation toward the “other,” which directly affect migrants because they constitute a socially disadvantaged group. This reality reflects both normative as well as social and economic structures. Probably as a result of these factors, the way in which state officials apply legislation responds to these same structures of discrimination, as a result of the wide margins of discretion imbued in current regulations. Future legislation should prioritize the protection of human rights, so as to fully guarantee the exercise of civil and social rights of a group that faces the consequences of structural mistrust toward immigrants. Migrants’ full social integration, as well as the exercise of their rights, depends on how Chile faces this challenge.

Not e s



This work was developed as part of research project No. 118,0197, entitled “Reconocimiento y protección de los derechos de las personas migrantes en Chile: desafíos y perspectivas para el Derecho Migratorio,” which was financed by Chile’s Fondo Nacional de Desarrollo Científico, Tecnológico y de Innovación Tecnológica (FONDEC Y T).

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  1 Andrés Solimano and Víctor Tokman, Migraciones internacionales en un contexto de crecimiento económico: el caso de Chile (Santiago: C E P A L , 2006).   2 Departamento de Extranjeria y Migración (DEM), “Estadísticas Migratorias,” last accessed on 29 June 2020, http://www.extranjeria. gob.cl/estadisticas-migratorias.   3 Ratha, Dilip, Sanket Mohapatra and Ani Silwal. “Migration and Remittances data,” World Bank 2011, last accessed on 29 June 2020, www.worldbank.org/migration.   4 Bob Sutcliffe, Nacido en Otra Parte: Un ensayo Sobre la Migración Internacional, el Desarrollo y la Equidad (Bilbao: Facultad de Ciencias Económicas, Universidad del País Vasco, 1998); Jorge Rodríguez and Gustavo Busso. Migración Interna y Desarrollo en América Latina entre 1980 y 2005. Estudio Comparativo con Perspectiva Regional Basado en Siete Países (Santiago: CEPAL, 2009).   5 D E M, “Estadísticas Migratorias.”   6 Ibid.   7 Ibid.   8 Ibid.   9 Carmen Pérez González, Migraciones Irregulares y Derecho Internacional. Gestión de los Flujos Migratorios, Devolución de Extranjeros en Situación Administrativa Irregular y Derecho Internacional de los Derechos Humanos (Valencia: Tirant lo Blanch, 2012). 10 Eliseo Aja Fernández, Inmigración y Democracia (Madrid: Alianza Editorial, 2012). 11 Amparo Micolta León, “Teorías y Conceptos Asociados al Estudio de las Migraciones Internacionales,” Revista Trabajo Social, no. 7 (2005): 59–76. 12 David M. Heer, “When Cumulative Causation Conflicts with Relative Economic Opportunity: Recent Change in the Hispanic Population of the United States,” Migraciones Internacionales 1, no. 3 (2002): 32–53. 13 Douglas Massey, Joaquín Arango, Graeme Hugo, Ali Kouaouci, Adela Pellegrino, and J. Edward Taylor, “Teorías de migración internacional. Una aproximación y revisión,” Revista de Derecho Constitucional Europeo, no. 10 (2008): 465–78. 14 María Teresa, Herrera Urrutia, “El Mercado de La Vega Central: un Estudio de Caso de Movilidad Social Ascendente en Inmigrantes Peruanos,” bachelor degree thesis, Universidad de Chile, 2014; José C. Luque Brazán, “Asociaciones Políticas de Inmigrantes Peruanos y la “Lima Chica” en Santiago de Chile,” Migraciones Internacionales 4, no. 2 (2007): 121–50.

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15 D E M, “Estadísticas Migratorias.” 16 Legislative Bulletin No. 8,970-06. 17 Sutcliffe, Nacido en Otra Parte. 18 Presidencia de la República, Mensaje presidencial, proyecto de ley migratoria (Santiago: Ministerio del Interior, 2013). 19 An in-depth reflection reached during the International Conference on the Treatment of Foreigners of 1929 held in Paris, France; Pérez González, Migraciones Irregulares y Derecho Internacional, 23–4. 20 Legislative Bulletin No. 8,970-06, Art. 148. 21 Advisory Opinions OC-18/03 of 17 September 2003 and OC -16/99 of 1 October 1999, both of the American Convention on Human Rights. 22 United Nations Human Rights Committee, “Concluding observations on the sixth periodic report of Chile (CCPR/ C /C HL/C O/6 ),” 13 August 2014, last accessed on 29 July 2020, https://tbinternet.ohchr.org/_layouts/15/ treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fCHL% 2fCO%2f6&Lang=es. 23 Javier de Lucas, Derechos de los Inmigrantes y Políticas Migratorias: la experiencia histórica, los desafíos (Santiago: U. Central de Chile, inédito). 24 Mainly, Art. 22 of the American Convention on Human Rights, and Art. 12 and 13 of the International Covenant on Civil and Political Rights. 25 T C Sentence No. 2,273-2012-I N A, 4 July 2013, C.7. 26 T C Sentence No. 2.273-2012-I N A, 4 July 2013, C.25. 27 Ministerio de Justicia, Ministerio de Relaciones Exteriores and Ministerio de la Secretaría General de la Presidencia, Informe Segundo, Examen Periódico Universal, Segundo Ciclo – 18a Sesión Enero 2014 (Santiago: Gobierno de Chile, 2013). 28 Via the Palermo Protocols, Art. 411 quarter is incorporated into the Chilean Criminal Code, which defines human trafficking in the following way: “such that by means of violence, intimidation, coercion, deceit, abuse of power, use of a situation of vulnerability or dependence on the victim or the granting or reception of payments or other benefits on another, people are captured, relocated, welcomed or received to be subject to some form of sexual exploitation, including pornography, forced labour or servitude, bondage or slavery or similar practices, or organ harvesting, will be punished with the penalty of major imprisonment in its minimum to medium grades and a fine of fifty to one hundred monthly tributary units.” 29 Chile ratified the U N Convention against Transnational Organized Crime, and its protocols in 2004 through Decree No. 342 of 16 February 2005 of the Ministry of Foreign Affairs. 30 Jeremy Waldron, The Dignity of Legislation (Cambridge: Cambridge University Press, 1999).

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31 Gustavo Zagrebelsky, El Derecho Dúctil. Ley, Derechos, Justicia (Madrid: Editorial Trotta, 2003). 32 Kamel Cazor Aliste and Emilio Pfeffer Urquiaga, “La Búsqueda de Criterios Orientadores en la Configuración de las Potestades Normativas en Chile,” Ius et Praxis 15, no. 1 (2009): 191–227. 33 An identifiable “dialogue” between Carlos Carmona Santander (2001) and Arturo Fermandois Vöringher (2001) can be noticed. 34 Cazor Aliste and Pfeffer Urquiaga, “La Búsqueda de Criterios Orientadores.” 35 Supreme Decree No. 597, Art. 13, Foreigner Regulation. 36 T C Sentence No. 370-2003, 9 April 2003, C.23. 37 T C Sentence No. 465-2006, 30 March 2006, C.25. 38 Manuel Aragón Reyes, Constitución y Control del poder. Introducción a una Teoría Constitucional del Control (Bogotá: Universidad Externado de Colombia, 1999). 39 Cazor Aliste and Pfeffer Urquiaga, “La Búsqueda de Criterios Orientadores.” 40 Clara Burbano Herrera and Yves Haeck, “Staying the Return of Aliens from Europe through Interim Measures: The Case-law of the European Commission and the European Court of Human Rights,” European Journal of Migration and Law 1, no. 13 (2011): 31–51. 41 Presidencial Instruction No. 9 of 2008. 42 Cristina M. Rodríguez, “Constraint through Delegation: the Case of Executive Control Over Immigration Policy,” Duke Law Journal, 59 (2010): 1787–1846; Eduard Sagarra i Trias, “¿Puede Limitarse el Derecho al Acceso a la Sanidad Pública sin Debate Parlamentario Previo?,” Revista de Derecho Migratorio y Extranjería, no. 30 (2012): 207–22. 43 Presidencial Decree No. 1,393. 44 María Jesús Criado, “Derechos Ciudadanos y Migración en Perspectiva Comparada. Tendencias y Cambios Recientes,” Migraciones Internacionales 4, no. 4 (2008): 174–208. 45 T C Sentence No. 2,273-2012-I N A, 4 July 2013, C.29. 46 Law Noo. 20,609 of 2012, Art. 2. 47 On restrictions to freedom of movement, see TC Sentence No. 2,2732012- I NA, 4 July 2013, C.35 and C.36. 48 Art. 19.2. 49 Humberto Nogueira Alcalá, Lineamientos de Interpretación Constitucional y del Bloque Constitucional de Derechos (Santiago de Chile: Librotecnia, 2006). 50 T C Sentence No. 2,273-2012-I N A, 4 July 2013, C.30. 51 T C Sentence No. 2,273-2012-I N A, 4 July 2013, C.41. 52 Francisco O. Zúñiga Urbina, “El estatus constitucional de extranjero,” Revista de Derecho, no. 203 (1998): 301–30.

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53 Race, nationality, and language are protected under Law No. 20,609 of 2012. 54 T C Sentence No. 2,273-2012-I N A, 4 July 2013, C.33. 55 Art. 13, inc.1; Declared inapplicable by TC Sentence No. 2,273-12-INA , 4 July 2013. 56 Decree-Law No. 1,094 of 1975, Art. 13. 57 Supreme Decree No. 597, Art. 13, inc. 2. 58 T C Sentence No. 2,273-12-I N A, 4 July 2013, C.49; Pablo Contreras, “National Discretion and International Deference in the Restriction of Human Rights: A Comparison Between the Jurisprudence of the European and the Inter-American Court of Human Rights,” Northwestern Journal of International Human Rights 11, no. 1 (2012): 27–82. 59 Andrés Bordalí Salamanca, “La Administración Pública Ante los Tribunales de Justicia Chilenos,” Revista Chilena de Derecho 33, no. 1 (2006): 17–36; Juan C. Ferrada Bórquez, “El Sistema de Justicia Administrativo chileno: Revisión de la Legalidad de Actos Administrativos o Protección de Derechos y/o Intereses,” Revista de Derecho (Valdivia) 25, no. 1 (2012): 103–26. 60 Consular Regulation, Chapter XXVI , Decree No. 172 of 1977. 61 T C Sentence No. 11,521-14, Reception of writ of protection before the rejection of a permanent residency visa, C.8. 62 Aja Fernández, Inmigración y Democracia; Pedro Carballo Armas, “Inmigración y Derechos Fundamentales en la Unión Europea: una Aproximación a los Instrumentos Jurídicos de los Extranjeros en España,” Revista de Derecho Constitucional Europeo, no. 5 (2006): 279–93. 63 T C Sentence No. 2,273-2012-I N A, 4 July 2013, C.50. 64 Carolina Stefoni, “Formación de un Enclave Transnacional en la Ciudad de Santiago de Chile,” Migraciones Internacionales 7, no. 1 (2013): 161–87. 65 Iskra Pavez-Soto and Sofía Colomés, “Derechos Humanos y Política Migratoria. Discriminación Arbitraria en el Control de Fronteras en Chile,” Polis. Revista Latinoamericana, no. 51 (2018): 113–36. 66 Cecilia A. Domínguez Valverde, “Derecho Chileno Migratorio a la Luz del Derecho Migratorio Internacional: ¿Ceden los Derechos Humanos Mínimos de los Extranjeros Ante las Prerrogativas Soberanas de Control Migratorio?,” Revista Chilena de Derecho 43, no. 1 (2016): 189–217. 67 Except for Supreme Decree No. 597, Art. 142. 68 Resolutions No. 42,639 of 2007, No. 62,396 of 2008, and No. 24,808 of 2010. 69 Resolution No. 44,851 of 2009. 70 Decree-Law No. 1,094 of 1975, Art. 89. 71 Delegated by Supreme Decree No. 818 of 1983.

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72 Contreras, “National Discretion and International Deference in the Restriction of Human Rights”; Humberto Nogueira Alcalá, El Debido Proceso en la Constitución y en el Sistema Interamericano (Santiago de Chile: Librotecnia, 2007). 73 The comments about the situation in Chile in the 2009 by the Universal Periodic Review, a mechanism under the UN Human Rights Council. Las accessed on 1 July 2020, http://www.minrel.gob.cl/informe-epuchile-2014-consejo-de-derechos-humanos/minrel/2013-08-07/164104. html#vtxt_cuerpo_T0. 74 Court of Appeals Sentence No. 351-2013, C.3. 75 Supreme Court Sentence No. 38,337-2016, C.8. 76 Supreme Court Sentence No. 38,337-2016, C.6. 77 Supreme Court Sentence No. 38,337-2016, C.8. 78 Zúñiga Urbina, “El estatus constitucional de extranjero.” 79 Ángeles Solanes Corella, “¿Cómo gestionar los flujos migratorios para potenciar la inmigración legal? Un análisis jurídico desde España,” Migraciones Internacionales 4, no. 4 (2008): 135–72; Criado, “Derechos Ciudadanos y Migración en Perspectiva Comparada; Susana Novick, “Transformations and Challenges of Argentinean Migratory Policy in Relation to the International Context,” Migraciones Internacionales 6, no. 3 (2012): 205–37. 80 Circulars No. 6 and 7 on work visas and civil union temporary visas by the Foreign Affairs and Migration Directorate, 26 February 2015.

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4 Immigration Policies and Legislation in Colombia N a t a l i a C a i c e d o C a ma c ho

1 In t ro du c t io n : T he Evoluti on o f   Im m ig r at io n L aw and Flows 1.1 Immigration Policy and Legislation: Origins and Evolution1 From a normative standpoint, international migration has been a topic of relevance for the Colombian government since the beginning of the republic. Similar to other Latin American countries, and in tune with dominant nineteenth-century ideologies, Colombia sought to attract European and North American migrants, hoping that they would contribute to the country’s economic and sociocultural prosperity. To this end, immigration laws and provisions were drafted in 1823, 1843, and 18812 to promote white and European immigration, in an effort to modernize and increase the number of qualified ­workers in the agriculture sector.3 However, these policies were not as successful in attracting European immigrants as the ones passed by Southern Cone countries.4 At the beginning of the twentieth century, Colombia enacted its first laws designed to restrict immigration: the Law of 1923, which established quotas for certain nationalities, such as Armenian, Bulgarian, and Chinese immigrants, among others, as well as the 1936 Decree, which banned the entry of those from Romani ethnic groups.5 Colombia has historically been more a country of emigration than of immigration. In the mid-twentieth century, Colombian emigration

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was mostly made up of peasants and unskilled workers, seeking opportunities primarily in Venezuela, the US, Ecuador, Panama, Peru, Chile, and Bolivia.6 Venezuela became an attractive destination for Colombian migrants because of the economic boom from the rise in international oil prices in the 1970s. In the mid-1970s, however, the profile of the Colombian emigrant began to change, with an increase in the number of professionals and technicians who started settling in the US and other non-border countries. Later, in the late 1990s, the negative consequences of the country’s economic liberalization – including the bankruptcy of national companies and the reduction of the state’s role – triggered a new wave of emigration. More recently, as a result of stricter US immigration policies, Spain has become an important destination for Colombian emigrants.7 Syrian-Lebanese settlers make up one of Colombia’s best-known immigrant communities. Their origins can be traced back to the 1880s, when these immigrants settled mainly in Barranquilla, where they dedicated themselves primarily to trade.8 Other immigrant groups include the Jewish community, especially those of Polish origin, who have had a presence in the country since the 1920s, especially in the cities of Cali, Bogota, Medellin, and Barranquilla.9 The Japanese community, which settled mainly in the Cauca Valley, has gained a reputation for its business acumen. Finally, Spanish and Italian immigrants, engaged largely in business ventures, reside primarily in Bogota.10 From a legal perspective, Decree 2,955 of 1980 constitutes the first attempt to develop a systematic regulatory framework of immigration law in Colombia, although it was adopted at a time when migration was neither socially relevant nor an emerging phenomenon in the country. On a surface level, the 1980 Decree did not act as an obstacle to obtain residence;11 however, neither did it serve as a protective measure for immigrants’ rights. The legal norm was not supported by a catalogue of rights, and government powers were too broad, allowing the right to residence to expire at any given point. In addition, motives for deportation were numerous, and often unclear, and included clauses such as impeding the proper functioning of international relations and being heavily in debt. The 1980 decree was not especially complex, having been designed to regulate family or labour migration on a fairly small scale. As previously mentioned, the decree also granted broad discretionary powers to the civil administration, and it was characterized by the absence of any judicial controls over the decisions taken by the administrative authorities.

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A second stage in Colombia’s immigration policy began in 1992. This shift coincided with the imposition of neoliberal policies and the opening up of the country’s internal market to international goods and capital under President César Gaviria’s administration. Indeed, substantial changes were ushered in with the passing of Decree 2,268 in 1995.12 For the first time, the government was formulating policies on planning and orienting migratory flows, which revealed the profiles of migrants the state hoped to promote or attract.13 The country’s preference was for highly qualified immigrants and investment, to facilitate the neoliberalization and opening up of the economy. Thus, a favourable environment had to be created to encourage foreign capital and investment, and immigration legislation was seen as just the right instrument to facilitate that. The urge to introduce immigration policies that supported neoliberal reforms was common for most Latin American states during this period. Colombia maintained this explicit reference to a preferred migratory profile, albeit with some wording changes, in the 1995, 1996, 2001, and 2004 reforms to the immigration regulations.14 Consequently, during the 1990s and early 2000s, the country’s priority was very much set on promoting foreign capital investment, rather than the flow of migrant labour. Yet this stance started becoming more nuanced in the last decade of the twentieth century, when the exponential increase in emigration rates in the country called for more comprehensive policies on human mobility. According to the National Administrative Department of Statistics (D A N E ), and its 2005 census, 3,378,345 Colombians were living abroad. In 2014, estimates from the Ministry of Foreign Affairs put this number at 4,700,000.15 In the third stage, the concern for foreign investment continued to be a top priority for Colombia’s immigration policy. However, it also became apparent that immigration flows not linked to the large foreign investment projects had to be regulated. This was made most evident with the creation of the Comisión Nacional Intersectorial de Migración (Decree 1,239 of 2003) and the passing of Decree 4,000 of 2004, which jointly regulates emigration, immigration, and asylum. In both of these decrees’ regulations, migrants are framed as economic agents, rather than as subjects of rights.16 The interest shown by the Colombian government in developing a more complete and systematic regulation of immigration was largely driven by its need to deal with the question of emigration. More specifically, it was becoming increasingly necessary to introduce a global reform of Colombia’s consulates and embassies, so they could respond to the needs of Colombians

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living abroad. The normative policies governing both emigration and immigration in Colombia are thus closely linked. An obvious example of this is the powers entrusted to the Ministry of Foreign Affairs on immigration matters. In 2009, a joint plan was drafted to design and implement a public policy that addressed both the regulation of immigration as well as the needs of the country’s emigrants. In response, the Consejo Nacional de Política Económica y Social (CONPES) document 3,609 of 2009 laid down the foundations for legislative and regulatory development over the next decade.17 However, parts of this document have yet to be fully implemented.18 In 2011, with Law 1,465, the National Migration System was created, and, although fairly succinct, the law sought to establish the basis for an entirely new system.19 Later on that same year, “Migration Colombia,” a Special Administrative Unit, was established, via Decree 4,062, to manage residence visas and register foreigners, and to oversee deportations. Indicative of the country’s new approach to migration, this administrative unit is proof that Colombia has committed itself to tackling immigration as a phenomenon that, while currently emerging, looks set to increase in the future.20 This trend toward a more systematic and broader regulation of immigration was further consolidated with Decree 834 of 2013. This decree eliminated explicit references to a preference for highly qualified, and business, immigration, and simplified the visa categories. Two years later, Decree 1,047 of 2015 introduced the Southern Common Market (MERCOSUR) visa, a measure that fully integrated Colombian immigration policy within the broader framework of regional immigration policies. The M E R C O S U R visa allows entry to, and residence in, Colombian territory for a period of up to two years for nationals from the expanded M E R C O S U R member countries.21 Subsequently, on 26 May 2015, Decree 1,067 was enacted, issuing the single regulatory decree of the administrative department of the Ministry of Foreign Affairs. This decree contains all current regulations governing emigration, immigration (with the exception of visas and residence, which continue to be regulated by Resolution 6,045), and asylum. 1.2 The Impact of Venezuelan Immigration In recent years, migration in Colombia has been primarily shaped by the effect of the mobility and displacement of Venezuelans fleeing the political and social crisis that their country has been experiencing. In Colombia, Venezuelan immigration has widened the image of foreigner

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communities well beyond the historical immigrant communities described in the previous section. Venezuelan migration is made up of three categories, or groups, of people: the first is pendular migration, the population that visits border cities to buy food and medicines, receive medical treatment, or sell products in local trade or street markets; the second refers to individuals and families who migrate with the aim of settling in Colombia to work and develop their livelihoods there; and the third is transitory migrants, individuals whose final destination lies in other regions or countries (mainly Ecuador, Peru, and Chile).22 According to data from the General Directorate of Migration, better known as Migración Colombia, more than 1,771,237 Venezuelans were living in Colombian territory as of December 2019.23 This figure represents an increase of over 50 per cent from 2018 data. Of these Venezuelan migrants, close to 754,000 have regularized their migratory status, and about 1,047,000 find themselves in an irregular administrative situation. Approximately 352,431 of the Venezuelan migrant population lives in Bogota; 165,475 in La Guajira; and 202,727 in Norte de Santander. Other departments hosting large numbers of Venezuelans are Atlántico (167,604), Antioquia (149,535), Santander (99,659), Bolivar (92,556), and Valle del Cauca (92,530), while the department of Nariño serves primarily as a place of transit for migrants going to Ecuador, Peru, Chile, and Argentina. According to the latest data of Migración Colombia, published in February 2020, 1,800,000 Venezuelans are currently living in Colombia.24 Also, Venezuela’s R4V (Inter-agency Coordination Platform for Refugees and Migrants) identifies Colombia as the country receiving the largest number of Venezuelan migrants and refugees in the world.25 The arrival of Venezuelan migrants has obliged Colombian legal authorities to make a number of expedited decisions. In 2016, the Migratory Border Transit Card between Colombia and Venezuela was created to facilitate border mobility for Venezuelans without a passport. The card allows migrants to cross the border after presenting either a personal identity card or another proof of identification, dispensing with passports as an obligatory type of documentation. Furthermore, Special Permits of Permanence (PEP) were issued via Resolution 5,797 of 2017. The PEP sought to facilitate the regularization of Venezuelans who had entered Colombia before 2 February 2018 and authorized residence in the country for a period of up to two years. Under the PEP, the regularization of migratory status has been

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Figure 4.1 Asylum applications submitted per year by Venezuelan citizens in Colombia, 2003–17 Source: Created by Soledad Castillo Jara, with data from http://popstats.unhcr.org/en/asylum_ seekers.

extended, twice in 2018 (February and December), and once in January 2020.26 Another consequence of the arrival of Venezuelan immigrants has been the increase in asylum applications. As can be seen in figure 4.1, asylum applications have increased exponentially as Colombia has become one of the main host countries for Venezuelan citizens. On the other hand, the situation of stateless children of Venezuelan nationals has been another challenge for the Colombian government. The difficulties in registering minors born in Colombia in the Venezuelan consulate, and the obstacles set up by the Colombian registry to recognize statelessness, have led to an increase in minors without nationality. As a consequence, in 2019, Law 1,997 was enacted, which granted Colombian nationality to children who were born between 1 January 2019 and September 2021 to Venezuelan nationals. The relatively open immigration policies adopted by Colombian institutions, in response to the forced mobility from Venezuela, changed markedly in February 2018, when the government introduced control and surveillance instruments. These instruments were guided by a more restrictive attitude toward immigration flows and aimed to avoid border crossings and restrict the number of people entering Colombian territory. Examples of these measures include suspending

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the Migratory Border Transit Card between March and November 2018, via Decree 542 issued on 21 March 2018; reinstating passports as a requirement to cross the border; increasing the presence of the army and police at the border; and creating the Grupo Especial Migratorio (GE M), an entity entrusted with controlling mobility in border areas. The action taken by the government, however, resulted in the expansion of the number of irregular border-crossing points (the so-called trochas), a growth in trafficking networks, and an increase in immigration authorities and institutions’ exploitation and violation of migrants’ rights.27 The government’s response to Venezuelan migration has failed to be comprehensive and timely. The legal regulations adopted are, in all cases, temporary and exceptional, demonstrating that the Colombian government has not conceptualized Venezuelan migration as a structural phenomenon that will continue. Since March 2020, the Covid-19 pandemic, and the country’s quarantine declaration, have exponentially increased the vulnerability of Venezuelan nationals. First, because many of them rely on the informal economy as their main source of income, the mobility and labour restrictions have left them in a highly precarious situation in which they can’t get any income. Second, many Venezuelans do not have access to the country’s health care system. That is only a right guaranteed for those who have a residence permit or other types of authorization. Although Fernando Ruiz Gómez, the country’s health minister, recently publicly guaranteed equal treatment for citizens and non-citizens, and authorities are currently implementing special care protocols for Venezuelans infected with the virus, there is a high p ­ robability that this population will be neglected. Third, Venezuelan nationals regularly suffer from racism and xenophobia at the hands of the government and society at large, with some authors pointing out that these phenomena will only increase as a result of the current crisis.28 As of March 2020, the Colombian ­government officially closed its borders to all countries. However, due to the vulnerabilities that many face during this pandemic, some Venezuelan migrants have opted to return home. In response, the Venezuelan government has reopened its borders to facilitate their return. Law 1465 enacted in 2021 included regulations on management and migration policy. But it is not a law focused on allocating rights and protection for migrants.

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2 C u r r e n t L e g is l at io n on I mmi grati on, A sy l u m , a n d N ati onali ty 2.1 Nationality According to the 1991 Constitution (Art. 91),29 Colombian nationality can be acquired at birth or through adoption (residence): •



Acquisition at birth is either by jus sanguinis (descent) or jus solis (born in the territory). Jus solis citizenship is acquired by those born in Colombia to either a Colombian father or mother, or to foreign parents, one of whom must be living in the country (domicile) at the time of the child’s birth. Domicile has consequently been interpreted as legal residence, that is, being a visa holder.30 Jus sanguinis citizenship can be acquired by the child of a Colombian father, or mother, born in foreign territory, but who returns to reside in the country or is registered at a consular office. Acquisition through adoption (residence) is also provided for under the 1991 Constitution, but the number of years of prior residence has to be remitted to the law. The constitution establishes a preferential regime for nationals of Caribbean and Latin American countries and members of bordering Indigenous communities, in keeping with the principle of reciprocity. By constitutional mandate, obtaining Colombian nationality does not entail the loss of a prior nationality.

Law 43, passed in 1993, provides for the legal regulation of nationality, according to which norms relative to the acquisition, renouncement, loss, and recovery of Colombian nationality are established. The law establishes a tiered regime for the number of years of residence depending on the applicant’s nationality of origin. For example, one year is required for nationals of other Latin American and Caribbean countries, in adherence with the principle of reciprocity, and two years for Spanish nationals or foreigners married to a Colombian national. All other nationalities require five years of prior residence.31 As discussed, many Colombians migrated to Venezuela between 1970 and the late 1990s. By the end of that decade, it was estimated that Venezuela had hosted 31 per cent of all Colombian emigration.32 Many of these emigrants established families and had children in this

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neighbouring country, where they obtained Venezuelan nationality. Although entitled to Colombian nationality, many of the children were not registered in civil offices or at the corresponding consulate. Following the recent crisis in Venezuela, a significant number of the migrants reaching Colombian territory were the children of these original Colombian emigrants. However, they had not acquired Colombian nationality (despite their right to do so), because their births had not been correctly registered. According to Decree 356 of 2017, parents must register a child within a month of their birth, and a birth certificate issued abroad needs to be attached, apostilled, and, if necessary, translated.33 The regulations, however, also allow for the possibility of extemporaneous registration, that is, registration after the original one-month deadline. In the absence of a birth certificate (or similar document), registration can be completed with the testimony of two witnesses before a civil registry officer.34 Venezuelans’ arrival in Colombia increased the number of requests for the extemporaneous registration of children born to Colombian emigrants, either because their births had not been registered with the Colombian civil registry or because of the many problems some migrants faced in proving the validity of their Venezuelan birth certificates. In response, the civil registry offices did little to facilitate the extemporaneous registration, and required migrants to present apostilled documents, which were difficult, if not impossible, for them to obtain. It has also been documented that the national registration authorities, on some occasions, acted deliberately and arbitrarily to impede requests for late registrations.35 If the Colombian registry office refuses to register a minor, who is the child of Colombian parents, due to the absence of apostilled documents, the Constitutional Court declared, via Judgment T-212 / 13 of 2013, the following: “[I]t is the State’s obligation to remove those obstacles that hinder the exercise of the fundamental rights of minors, particularly if these barriers constitute mere formalisms, which do not contribute to the effective exercise of rights, and, on the contrary, hinder it, with greater exposure to conditions of vulnerability, which is precisely what the Constitution proscribes.” The Constitutional Court held that, if an apostilled civil registry of birth could not be presented at birth, two witnesses could testify to the child’s birth as established by the norm itself. Following this ruling, the National Civil Registry issued several circulars36 providing for the possibility of replacing the apostille for two witnesses, but only in the case of minors.

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Subsequently, in Judgment T-412 / 17 of 2017, on the refusal of the national authorities to register an adult of Colombian parentage due to the absence of an apostille of a Venezuelan birth record, the Constitutional Court ruled that it was not possible “to give priority to the procedures, nor to the procedural instruments over substantial rights.” Registration could thus be done with two witnesses, regardless of whether the person being registered was a minor or an adult. This judgment was later incorporated in two bulletins published by the National Civil Registry.37 Similarly, Judgment T-17 of 2015 dealt with the refusal of the Atlantico department to issue a Colombian passport to a minor born in Colombia to two Chinese nationals on the grounds that neither of the parents held a permanent residence visa. However, the Constitutional Court ruled that, for the purposes of obtaining nationality and all subsequent procedures, the regulations only require one of the parents to be legally domiciled in Colombia, a visa (authorization) of residence that may be either temporary or permanent. The Court thus ruled that requiring one of the parents to hold a permanent residence visa was a violation of the fundamental right to identity and nationality.38 In short, the administrative practices of the National Civil Registry have demonstrated a high degree of arbitrariness. Colombian legislation has made registration more flexible – both in terms of extemporaneous registration and documentary requisites – with the aim of enforcing the fundamental right to nationality. Yet the cases brought before the Constitutional Court show that, in practice, the registry continues to arbitrarily deny registrations. Similarly, registry offices fail to provide information on extemporal registration and to recognize procedures that allow registration when applicants are not able to visit the civil registry or provide an apostilled certificate. This directly affects the Venezuelan migrant population and violates the fundamental right of access to nationality, as well as that of rights of due process. Moreover, the circulars issued by the registry have not changed its performance. A judicial challenge via a writ of protection seems to be the only way to guarantee the right to nationality. With regard to statelessness, according to Law 43 of 1993, a child who is born in Colombia to foreign parents can be granted Colombian nationality provided that the parents submit proof that their state of origin does not extend citizenship to the minor. In accordance with Circular 168 of 2017 of the National Civil Registry,39 this process of certification is the responsibility of the Directorate of International Legal Affairs of the Ministry of International Relations in consultation

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with the respective diplomatic offices or consulates. The regulations thus recognize statelessness as a legal (de jure), but not factual (de facto) category. The consultations conducted by the registry, with the respective diplomatic offices or consulates, operate under the premise that the legislation of the parents’ country of origin recognizes the nationality of minors. However, in the case of asylum seekers, initiating the process at an embassy may endanger the lives of families. In this scenario, when the Colombian legal system fails to respond, de facto situations of statelessness are created. The Venezuelan socio-political crisis, as well as the mass displacement of Venezuelans to Colombia, have challenged the country’s current statelessness legislation by highlighting that it does not offer minors born in Colombia to Venezuelan parents any real possibility of obtaining Colombian nationality. Nationality by jus sanguinis is recognized according to Venezuelan law, but the administrative procedures necessary for that registration are currently impossible to carry out. As a result, the vicious circle between Colombian regulations requiring proof that the state of origin does not extend citizenship to the minor, and the enormous limitations for registering at the Venezuelan consulate, have caused an important surge in the numbers of minors with no nationality. In response, Law 1,997 of 16 September 2019 relaxed the requirements for the recognition of statelessness by adding a new paragraph to Law 43 of 1993.40 As a result, minors born between 1 January 2015 and September 2021 will not be required to obtain any document from the Venezuelan government, and the National Civil Registry will oversee the nationality inscriptions. Via Judgment T-6 / 20 of 2020, the Constitutional Court has recently recognized the nationality of two minors born in Colombia to Venezuelan parents. In these cases, the parents could not carry out the nationality inscription at the Venezuelan consulate, and the Colombian civil registry authorities did not allow the parents to register a nationality for the minors, leading to both children being stateless. The Constitutional Court ruled that the national authorities did not implement the principle regarding the best interest of minors, and ruled that Colombian nationality should be recognized. 2.2 Asylum and Refuge Asylum regulations in Colombia are provided for under Decree 1,067 of 2015. According to the Colombian legal system, the term refugee applies to any person who: “Owing to well-founded fears of being

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persecuted for reasons related to one’s race, religion, nationality, membership to a particular social group or political opinion, is outside their country of nationality, and is unable or, owing to such fears, unwilling to avail themselves of the protection of that country; or who, not having a nationality and finding themselves outside their country of former habitual residence, as a result of such events, is unable or, owing to such fears, is unwilling to return to it.” This statement incorporates the definition of the term refugee from the 1951 Convention Relating to the Status of Refugees, which outlines that for protection to be awarded, the applicant needs to prove that their persecution is both direct and subjective. Colombian legislation, moreover, limits protection to a set of precise factors, such as race, religion, nationality, and membership in a particular social group or with a particular political opinion. Other motives, such as sex, sexual orientation, and manifestations of gender-based violence can only be taken into consideration once it has been shown that the applicant belongs to a particular social group included within this definition; otherwise, the latter factors would be disregarded. The definition of the term refugee is also extended to include: “Persons who have fled their country because their lives, security, or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights, or other circumstances, which have seriously disturbed public order.” This second statement includes a definition of protection based on the terms set by the Cartagena Declaration on Refugees, granting a broader and more objective level of protection. Protection is no longer tied to proof of personal persecution, because it is now possible to receive asylum protection given situations of generalized violence. This alternative reflects the recent character of forced migrations that have led to the displacement of thousands of people in need of international protection, which differs from the definition of refugees created after the Second World War. Colombian legislation refers specifically to situations of violence or war, but also takes climate refugees into consideration here. The definition of the term refugee in Decree 1,067 of 2015 continues as follows: “That there are well-founded reasons to believe that they would be in danger of being subjected to torture, or other cruel, inhumane, or degrading treatment, or punishment, in the event of deportation, return, or extradition to the country of their nationality, or, in the case they lack a nationality, to the country of habitual

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residence.” This third statement includes the concept of protection based on the principle of non-refoulement, or no return, cited in the 1951 Convention Relating to the Status of Refugees. However, its incorporation in Colombian legislation reflects the scope of this principle as established by international courts and, in particular, the Inter-American Court of Human Rights (IAC tHR) and the European Court of Human Rights (E C tH R ).41 Figure 4.2 shows that asylum applications in Colombia have increased significantly. In fewer than 10 years, the country has gone from receiving a much smaller number of requests to a huge increase. As a result, implementing an asylum procedure with all the guarantees is one of the main challenges of protecting the human rights of migrants who are forced to flee and apply for asylum. Colombian law allows migrants to apply for asylum in one of two ways: on arrival, that is, at the border or port of entry; or, once in the territory, provided that they apply within two months of arrival. Once asylum has been requested, the person must ratify, or extend, the application within five days; non-ratification results in automatic rejection. The applicant is then granted a safe-conduct (salvoconducto), which allows them to reside in Colombia up to three months, though this can be extended if needed. The person is then summoned for an interview where they have to provide proof of the alleged persecution. Finally, the Advisory Commission for the Determination of Refugee Status (C O NA R E ) issues an order confirming or denying the applicant’s refugee status, and the Ministry of Foreign Affairs issues the corresponding resolution. In case of rejection, appeals can be filed both administratively and judicially. There are serious flaws in the process of protecting asylum seekers’ rights. First, little information is made available to asylum seekers at the border. While Colombian law allows border applications, in reality the country’s border authorities do not communicate this right to incoming migrants. If an asylum request is made at the border, the processes are unclear because of a lack of administrative coordination between the border authorities and CONARE on the one hand and the lack of legal advice on the other. Moreover, the process is governed by very rigid deadlines, and failing to adhere to them leads to migrants losing their right to request asylum. All asylum requests must be submitted within two months – an ­excessively short period of time considering the realities of forced migration. Also, the procedures for extending and ratifying an asylum

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Figure 4.2 Number of asylum applications per year (of all national origins) filed in Colombia, 2000–17 Source: Created by Soledad Castillo Jara, with data from http://popstats.unhcr.org/en/asylum_ seekers.

application seem to have been specifically designed for immigration authorities to facilitate the rejection of applications. The five-day period is extremely short and the consequences of failing to comply are disproportionate, leading to the rejection of the application. The period for completing these procedures, if required, should be extended and should only apply to cases for which more information or documentation have to be presented, but not as a general rule. Otherwise, they constitute a violation of migrants’ right to request international protection. Related to this point, it is worth recalling the ruling of Colombia’s Constitutional Court, which states that procedural requirements should not be an impediment to the exercise of a substantial right.42 That is, the procedure should seek to make the right effective, and not impede the exercise of that human right, such as granting protection through asylum. In reference to the country’s asylum procedures, via Judgment T-701 / 03 of 2003, the Constitutional Court recognized that, since the procedure for evaluating asylum applications is an administrative procedure, it must be governed by the principles of due process. Another controversial point is that the safe conduct granted to an asylum seeker does not include the authorization to work. Thus, applicants are often forced to work irregularly (typically as street

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vendors). Furthermore, the procedures for applying for asylum are not decentralized. That means applicants have to travel to Bogota, the country’s capital – and cover the associated costs – and there is no set deadline for responding to applications.43 Finally, it is also worth mentioning that, according to Article 16.2 of the 1951 Convention Relating to the Status of Refugees, states must guarantee legal advice for refugees. However, there is no explicit reference to the possibility of obtaining access to free legal aid or to a translator in the Colombian regulations related to refugees. Two elements of Colombian law specifically contribute to the protection of refugees. First, protection afforded by the non-refoulement principle makes it possible to apply for asylum if the applicant has suffered persecution before, or after, arriving in the country. In the latter case, there is no deadline for submitting an application and the asylum seeker can also request international protection. The second refers to the request for refugee protection presented by women, in which case the woman must be informed privately of her right to request an application independently from her husband or partner. Overall, Colombia’s asylum regulations are excessively bureaucratic and do not seem to consider that asylum seekers find themselves in situations of extreme vulnerability, nor do they consider that applicants’ circumstances might be highly diverse and that they do not respond to a homogenized image that fits a standard, unified procedure. What the system needs is to be overhauled and adapted to the present-day reality of South American forced migration, a reform that would clearly reflect the protection standards provided for in the 1951 Convention Relating to the Status of Refugees, and, above all, in the Cartagena Declaration on Refugees. Currently, there is no information explaining how immigration authorities are seeking to prioritize the system of protection provided for under the that declaration. According to inquiries made by the Consultoría para los Derechos Humanos y el Desplazamiento (CODHES) to the Ministry of Foreign Affairs, more than 90 per cent of the requests are resolved under the category of “other forms of completion.”44 It is, thus, impossible to know on what basis asylum requests are being resolved and whether immigration authorities offer protection based on objective persecution, as provided for under the Cartagena Declaration on Refugees. Data from R4V indicates that, as of 8 May 2019, a total of 5,303 asylum applications from Venezuelan nationals had been submitted to the Colombian government. So far, a total of 140 refugee statutes have

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been granted. There is no official data on the total number of asylum applications denied. However, it can be estimated that the number is large, due to the comparison between requests and concessions (although there is no official data on the total number of requests). In addition, in September 2019, the government embarked on a regularization campaign for those who had had their asylum applications denied. According to the regulation, migrants who applied for asylum between 19 August and 31 December 2018 could request the Special Complementary Permanence Permit (PECP).45 This permit authorizes rejected asylum seekers to live in Colombia for up to two years, and they must renew the authorization every 90 days. At the time that this chapter was written, there was no official data about how many PECP requests had been made, and how many had been authorized. 2 .2 .1 Sub si d i a ry P ro t e c t i o n Colombian legislation also provides for subsidiary protection. In accordance with Decree 1,067 of 2015, CONARE may grant a complementary measure when an asylum application is denied. This involves moving arrangements of a possible migratory regularization forward, i.e., within 30 days. Resolution 6,045 of 2017 on visas also provides migrants the possibility of applying for a V (visitor)-type courtesy visa when they have not been granted refugee status. Yet, according to C O N A R E , this situation also requires applying a complementary measure. The V-type courtesy visa is usually granted for one year, authorizes work, and may be extended to include direct family members; however, it may not be extended or renewed. After one year, the applicant can either file for another type of visa to obtain residence, or he or she is forced into an irregular situation. Judgment 250 / 17 of 2017 by the Constitutional Court discusses a writ of protection filed by two Venezuelan citizens. In this case, C O N A R E denied their request for asylum, but, because the family included a minor, recognized their right to request a complementary measure (subsidiary protection) within a period of up to thirty days. The Constitutional Court ruled that no rights (non-refoulement or due process) had been violated, because the family was not ordered to return to Venezuela, and they were granted the possibility of requesting subsidiary protection. However, the court did not assess the effectiveness and adequacy of the complementary measure. Rather, it issued a ruling stating that while the literal nature of the law seems to grant the right to international protection, the reality differs from

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this interpretation. Overall, subsidiary protection in the Colombian legal system is an ineffective mechanism both from the point of view of migrants’ rights, since it does not grant effective protection (one year without possibility of renewal), and from that of immigration policy, because it promotes irregularity.

3 R e s id e n c e a n d Mi grant L a b o u r R e g u l ati ons Visa and residence regulations are governed by Resolution 6,045 of 2 August 2017. A norm previously introduced to regulate these procedures, Decree 1,743 of 2015, was limited to redirecting the regulation of all procedural and administrative matters for visas to a ministerial resolution. Besides its focus on the internal regulations of visas, the decree also merges procedures for issuing visas and residence permits. In the Colombian legal system, visas (with the exception of a short-term visa) recognize the possibility of residing in the territory. There is thus no distinction between visas and residence permits, as there might be in other countries’ legal systems. This feature was incorporated into Decree 2,955 of 1980 and has been maintained until the present day. The 2017 resolution provides for three types of visa: V – visitor, M – migrant, and R – resident. V-type visas regulate temporary stays, which include transit, tourism, and stays for medical consultations, administrative or judicial proceedings, studies or academic exchange programs, internships, and volunteering, among others. This visa is granted to any individual who wants to stay temporarily in Colombia, but who has no intention of settling.46 The V-type visa includes a second category, called a courtesy visa, for diplomatic figures, and also includes the regulations for subsidiary protection in matters of asylum, as explained in the previous section. M-type visas are intended for relatives of Colombian nationals,47 MERCOSUR residents, and persons holding refugee status. For all three cases, the visa includes a work authorization. M-type visas are also intended for those who have a fixed or long-term job, who are shareholders in a commercial company, or who are self-employed. For these three scenarios, the visa includes a work authorization, but this is limited to the specific occupation for which the visa is issued. M-type visas are also issued to those who perform religious or related activities, are studying, invest in or purchase real estate, or are beneficiaries

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of a pension or regular income. These cases would classify as a nonlucrative residence given that the authorization to remain in the territory does not allow the visa holder to work. The M-type visa for all of these cases is valid for three years, authorizing the holder to live in Colombia for that length of time. R-type visas concern permanent residence and are issued after five years of temporary residence or after two years, in the case of MERCOSUR residents or being the parent of a Colombian national.48 The regulation of a parent’s residence raises problems in the principle of equality and non-discrimination, because the legislation differentiates between nationality acquired by birth and that acquired through adoption. The regulations governing visas and residence have been reformed many times, with the intention of simplifying procedures. Since the 1980 Decree, several reforms have sought to address the problem of the highly fragmented regulation, by simplifying visa types, introducing deadlines, and regulating procedures and requirements in greater detail. Despite these efforts, current regulations are not especially effective and require further systematization. The current classification into three types (V, M, and R) is insufficient, because each category incorporates a large number of sub-categories, each with a specific regulation (validity, work authorization, renewal, etc.), making systematization even more difficult. Visas can also be extended to immediate family members: spouses or permanent partners, parents – when economically dependent on the visa holder – and children under the age of 25. Extending residence to these beneficiaries does not authorize them to work. This limitation has a particular impact on family members of working age. Restrictions of this type typically aim to protect the internal labour market, so that individuals acquiring residence in this way cannot join it. However, the concept of family reunification is guaranteed not only as a manifestation of the right to live as a family, but also as part of a migration policy in which governments embrace immigration as a stable and structural phenomenon. In this sense, Colombian legislation is inconsistent. It provides the possibility for reunifying the family, but, paradoxically, does not authorize family member(s) to work. Visa applications have to be filed abroad. If an applicant applies for a visa once they arrive in Colombian territory, they must provide proof of a legal, regular, or authorized stay. In this sense, it is impossible for a migrant to regularize their migration status via a visa application. When a visa application is denied, it is no longer possible to file an

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administrative or judicial appeal. On this matter, via Judgment T-321 / 05 of 2005, the Constitutional Court stated: “States have a wide margin of discretion to regulate the entry and stay of foreigners in their territory. This discretion has, as its limit, the fundamental rights to which all States are committed.” Closing administrative and judicial channels, in the case of an unsuccessful visa application, promotes a degree of arbitrariness, because no other types of control are exercised, and redirects all claims to writ of protection, which constitutes an exceptional approach that supplements the deficiencies of the ordinary jurisdiction. Faced with the impossibility of an administrative or judicial appeal, applicants’ only open way of challenging visa denials is to advocate for the protection of their fundamental rights before the Constitutional Court. There are visas, such as the tourist or transit visa, where the prerogatives of the state are broader, since the fundamental rights at stake are lower. However, in the case of worker visas or beneficiary visas for family reunification, the fundamental rights at stake require regulations to avoid arbitrariness and prevent the violation of rights. Judgment T-338 / 15 of 2015 reflects this argument. In this case, the Constitutional Court analyzed, by means of a writ of protection, the denial of a beneficiary visa (reunification) to the mother of a citizen of Chinese nationality who resides in Colombia and is the father of two Colombian daughters. The Colombian Ministry of Foreign Affairs refused to issue the visa, despite the fact that the complainant met all the requirements, on the grounds that the applicant had spent time in Colombian territory in an irregular situation. In its response, the Constitutional Court included the recommendations of the InterAmerican Commission on Human Rights (IACHR) on fundamental rights, which limits the ability of states to establish migration policies and introduce entry controls in their territory. In this case, the court held that the refusal to issue a visa, based on the individual in question having been in Colombian territory in an irregular situation in the past, presupposes an additional sanction that is not provided for by the law and that violates the right to family reunification. Article 67 of Resolution 6,045 of 2017 establishes that visa cancellations can be made in the case of deportation, expulsion, or as a result of evidence indicating the applicant’s involvement in fraudulent actions. However, under Article 97 of Resolution 6,045 of 2017, the Colombian system grants Migración Colombia the power to cancel

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a visa at any time. Such a decision can be adopted in exercising its discretionary power, for the social, demographic, economic, and cultural needs of the state, or for security, public order, and health concerns, as well as any other issues of special interest for the Colombian state. No appeal is allowed in response to a cancellation of this kind. The power of visa cancellations granted to Migración Colombia has been entirely arbitrary since its introduction by Decree 2,955 of 1980, and, in turn, these powers have been transferred into each subsequent reform.49 Yet, they represent a flagrant violation of a number of principles underpinning the democratic state: legal security, good faith and loyalty to the administration, a right to defence, the right to file an administrative appeal, and the prohibition of arbitrariness, among others. Another type of residence is the P E P , adopted under Resolution 5,797 of 201750 as a means of regularizing the Venezuelan migrant population that had entered Colombian territory between July 2017 and 2 February 2018, via a border post set up for migratory control. The PEP authorized residence for up to two years and, according to UNHCR data, regularized a total of 799,373 Venezuelans.51 The PEP included work authorizations and the possibility of access to the right to education. Moreover, Resolution 3,015 of 2017 recognized the PEP document as a valid document of identification in the System of Identification of Social Program Beneficiaries (SISBEN), the country’s social welfare system. In short, the P E P recognizes the right to work and the right to receive education and health care, in addition to regularizing residence in Colombia. However, the P E P only allows the regularization of people who crossed the border via an authorized point between the specified dates, leaving all those Venezuelans who crossed via the trochas, or non-regular border points, without protection. The document is also provisional for up to two years and presupposes that the holders have no intention of settling indefinitely in Colombia. This time specification contrasts, however, with the fact that 88 per cent of Venezuelans report wanting to stay in Colombia.52 In other words, though the PEP was introduced as a norm that apparently sought to regularize immigration in an orderly and safe fashion, in practice it is only a provisional authorization, which, after two years of residence, will leave hundreds of thousands of migrants in irregular situations. The PEP thus fails to give an effective, long-term response to the migration crisis. In any case, the issue of irregularity or unlawful

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status generated by the temporary nature of the P E P has led the government to renew this temporary permit for two more years. In addition, three more resolutions53 have passed that have implemented new temporary P E P permits, with the aim of regularizing the Venezuelan migrant population that arrived during 2018 and 2019.54 The non-protection policy for Venezuelan migration has moved swiftly, with the Temporary Protection Statute for Venezuelan migrants approved in 2021. This statute, provided for by Decree 216 of 2021, opens the way for granting residence and work for a period of 10 years. The beneficiaries of this statute will be Venezuelans who already hold a special authorization such as P I P (entry and stay permit), P E P , or P T P (temporary residence permit), unregistered Venezuelans who have entered Colombian territory before 31 January, and also those who enter the Colombian territory through legal ­borders in the following two years. The temporary statute represents a clear commitment by the Colombian government to establish safe routes for Venezuelan migration. From the migration policy point of view, the first step in advancing rights and protection for the most vulnerable groups is to recognize the legality of residence. The Colombian government’s commitment with the temporary statute is broad and objective, and avoids the limitations of providing legal residence linked to certain requirements that benefited few people, as happened with special permits (PIP, PEP, PTP). On the other hand, the temporary statute was enacted at a time when several Latin American countries have opted to close and militarize their borders in contravention of international law, especially the Geneva Convention on refugee status. The immigration statute is a way to guarantee rights and protect Venezuelan nationals. It should therefore be adopted by the rest of South American countries that are facing Venezuelan forced migration today.

4 t h e R o l e o f t he Courts The absence of a statutory law that systematically encompasses the rights of migrants means that any analysis of these rights must be undertaken in light of the precepts laid down in the Colombian Constitution of 1991, in sectoral legislation, and, above all, in the case law of the Constitutional Court, which sheds light on the interpretive criteria, scope, and limits of the rights of non-nationals.

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4.1 Scope of the Principle of Equality and Non-Discrimination Article 13 of the Constitution establishes that: “[A]ll individuals are born free and equal before the law, will receive equal protection and treatment from the authorities, and will enjoy the same rights, freedoms, and opportunities without any discrimination on account of gender, race, national or family origin, language, religion, political or philosophical opinion.”55 And Article 100 affirms that: “Aliens in Colombia will enjoy the same civil rights as Colombian citizens. Nevertheless, for reasons of public order, the law may impose special conditions on or nullify the exercise of specific civil rights by aliens. Similarly, aliens will enjoy, in the territory of the Republic, guarantees granted to citizens, except for the limitations established by the Constitution or the law.”56 Based on these two precepts, the Constitutional Court has established pre­ cedents for the scope of the principle of equality for foreigners. In Judgment C-768 / 98 of 1998, on the application of a foreigner’s right to pardon, the Court ruled that foreigners have the same right to equality as was laid down in Article 13. Therefore, all differential treatment between nationals and non-nationals should be analyzed in relation to the principle of reasonableness. The court added that, when considering alien status, the degree would not be the same because “Article 100 ‘diminishes the force of the expression “national origin” contained in Article 13 when applied to situations in which foreigners are involved.’”57 In this same ruling, the court affirmed, “the degree of the principle of equality under the law in cases in which the rights of foreigners are compromised will depend on the type of right and the specific situation under analysis.” In other words, the analysis of the court takes Article 13 as its guiding principle for the scope of equality under the law. Thus, migrant status is not left outside the Constitution, which provides some guarantee of foreigners’ rights. In this way, the recognition of migrants’ rights stands in opposition to debates on the legal exclusion of foreigners, and grants them protection under the Constitution. However, this interpretation is contextual. The court has also affirmed and maintained that, in the case of alien status, the scope of equality under the law that foreigners are entitled to will not be the same as for nationals, but, rather, a weakened or diminished judgment of equality will hold.

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According to this ruling, how the judgment of equality is applied depends on the type of rights and the circumstances of each case. That is, the court’s parameters for considering the limitations of migrants’ rights will vary or be adjusted on a case-by-case basis. In subsequent declarations, the court has included parameters or criteria for this degree of equality and reasonableness. In Judgment C-1,058 / 03 of 2003, regarding the possibility of a public service company being represented by a foreigner, the court held that a less strict test is required when the limitation of rights is justified on grounds of public order, as established in Article 100 of the Constitution. In cases when differentiated treatment is not justified for reasons of public order, however, the legal standard provided for in Article 13 should d ­ etermine whether a difference in treatment is discriminatory. So, if differential treatment is justified on the grounds of public order, a diminished principle of reasonableness would be applied; but, if public order does not justify differential treatment, the general criterion of reasonableness holds. The presence of a fundamental right has also recently been used as an argument by the Constitutional Court to determine the application of reasonableness. In Judgment T-250 / 17 of 2017 on the denial of asylum, the court stated, “strict scrutiny will be accepted if the adopted measure seriously affects, prima facie, the enjoyment of a fundamental right. On the contrary, intermediate scrutiny will be used when the enjoyment of a non-fundamental right is affected or in cases when the measure could be ‘potentially discriminatory’ with respect to any of the subjects compared.” Public order has been the main criterion applied in the rulings of the Constitutional Court. In Judgment T-250 / 17, the court affirmed, “when a right is limited for reasons of public order, the Court must examine that the reasons invoked are concrete and not abstract, and that the limitations placed on the rights of foreigners are explicit, necessary, minimum, and indispensable in shaping legitimate constitutional ruling.” However, as will be explained below, the court has not always adhered to these criteria. On several occasions, it has considered an abstract and general interpretation of the concept of public order to legitimize certain limitations on rights. For example, the Constitutional Court has ruled that foreigners cannot be partners in a private security company (Judgment C-123 / 11 of 2011) or representatives of a public service company (Judgment C-1,058 of 2003). Applying the principle of equality and non-discrimination to the migrant population presupposes clarifying the extent to which

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nationality or alien status are grounds for the application of a weakened or a strict judgment of reasonableness. As previously explained, the Colombian Constitutional Court employed a diminished principle of reasonableness even though the IACtHR and the ECtHR agreed that strict scrutiny should be used when nationality has become a “suspect category.” The IACtHR declared, “[T]he first justification for recognizing that irregular migrant workers comprise a ‘suspect category’ is that discrimination against this group is closely linked to its nationality, ethnic origin or race.”58 Likewise, the E C tH R stated, “[V]ery weighty reasons would have to be put forward before the court could regard a difference of treatment based exclusively on the ground of nationality as compatible with the Convention.”59 International tribunals have employed strict scrutiny and solid grounds for dismissing discriminatory treatment, as well as limiting the powers of the state, as approaches when recognizing the political and social rights of migrant populations. In the Colombian case, the analysis of equality in such discriminatory clauses has not been addressed to date, because the Constitutional Court has focused on analyzing the rights in question and the circumstances of each case. Only in Judgment C-123 / 11 of 2011 did the Court affirm tangentially that nationality, as a “suspect category,” is discriminatory, holding that the degree of suspicion will depend on each case. The Constitutional Court’s doctrine emanated from Judgment C-768 / 98 of 1998, a ruling that should be deemed positive because it introduced a statute of migrants’ rights in the constitutional text. The extension of Article 13 (with some limitations) includes the recognition of the rights and freedoms of foreigners in the Constitution; therefore, any interpretation must first be made in ­relation to the Constitution. This doctrine has been reiterated in numerous judgments, and this was the criterion used by the court until a short time ago. However, in recent instances, the court has sought to resolve cases based on the rights at stake and the specific circumstances involved. Indeed, such an approach is inherent to resolving the case. However, it has not been possible to establish clearer case law or parameters of interpretation for 1) the degree of equality and reasonableness; 2) the scope of discriminatory clauses, such as nationality, origin, or immigration status; or 3) the purposes that legitimize the limitation of the rights of migrants or the role of human rights treaties, among other issues. The absence of these criteria, and a resolution based on specific cases, exacerbates the

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fragmentation and dispersal of rights, already weakened because of the absence of a fixed catalogue of these criteria. Moreover, it facilitates conservative rulings. 4.2 Judicial Protection and Due Process Pronouncements on judicial protection and due process are particularly important for the analysis of the rights of foreigners. Early on, the Constitutional Court recognized the legitimacy of foreigners to file a writ of protection in defence of their fundamental rights. In Judgment T-380 / 98 of 1998, regarding a Bulgarian citizen’s allegation of discriminatory treatment in a competition to join the Bogota Philharmonic Orchestra, it was affirmed that the reference to “every individual” in Article 86 of the Constitution does not differentiate between natural or legal persons, nationals, or foreigners. As a result, it legitimizes any holder of rights that are being threatened or injured, to request the reinstatement of their rights before the judges of the republic. At the same time, on various occasions, the Constitutional Court has also recognized the right to due process. In Judgment T-956 / 13 of 2013, regarding the deportation of a citizen of Chinese nationality and father of a minor resident in Colombia, the court declared that due process was violated because, during the process of deportation, the person did not have access to a translator. Not being able to communicate with the immigration authorities, that individual could not exercise his right of defence. In this ruling, the court adhered to the rulings of the I A C tH R , which establish that migrants in an irregular situation are a vulnerable group. Therefore, it is the state’s duty to guarantee that all foreigners are able to assert their rights and defend their interests effectively, and, thus, that language is a crucial factor in guaranteeing the right of defence. As explained in the previous sections, the Constitutional Court has also ruled on the guarantees of due process in both visa (T-338 / 15 of 2015) and asylum procedures (T-250 / 17 of 2017). The recognition of rights related to effective judicial protection, defence, and due process requires both the formal recognition and protection through jurisdiction or writ of protection, as well as the necessary resources and economic means to allow access to judicial guarantees. Judgment T-956 / 13 of 2013, which was previously analyzed, sheds light on the lack of resources made available to defendants by Migración Colombia, specifically the lack of interpretation services to non-English speakers. Thus, the guarantee of rights – in this case,

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defence and due process – requires allocating public economic resources on behalf of public institutions; otherwise, it is practically impossible to effectively exercise these rights. At the same time, it is also worth reflecting on the need to rethink the judicial system, whose current approach to the challenges of global migration has been half-hearted. It is unsustainable for legal norms to be applied within a framework of relative social homogeneity when immigration is diverse and heterogeneous, elements that challenge both the way in which standards are interpreted as well as the processes by which they are applied. In this sense, legal guarantees also involve analyzing how law enforcement agents reproduce common prejudices in their pronouncements about the migrant population, such as the idea that migrants are a troublesome social element that takes advantage of resources, creates disturbances, or is dangerous. Often these prejudices condition the effective exercise of judicial protection and guarantees, such as the right to an impartial judge or a fair trial. As a result, contemporary migratory movements generate new debates about what constitutes effective protection and the need to incorporate institutional racism as an analytical lens in the field of migration studies. 4.3 The Right to Work, Social Security, and Unionization As described in the previous section on visas and residence, the Colombian legal system makes migrants’ employment and self-­ employment conditional on obtaining the corresponding work authorization. Thus, migrants’ ability to effectively exercise the right to work depends on them complying with immigration regulations. The labour rights of migrants in an irregular situation have not been legally recognized or analyzed by the country’s high courts, with the  exception of Judgment C-288 / 09 of 2009. This judgment revised the Permanent Immigration Status between Colombia and Ecuador, in which some of the IACtHR principles on the protection of migrants in an irregular situation were acknowledged and incorporated. In this regard, Advisory Opinion OC-18 / 03 reaffirmed what the international court established: “[T]he migratory status of a person can never be a justification for depriving him or her of the enjoyment and exercise of their human rights, including those related to employment. By assuming an employment relationship, the migrant acquires certain rights as a worker, which must be recognized and guaranteed, irrespective of his or her regular or irregular status in the state of

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employment. These rights are a product of the employment relationship.” 60 However, beyond this statement, irregular migrant workers in Colombia are especially v­ ulnerable since they are not able to claim basic rights, such as compensation, protection against dismissal, or protection against discrimination, among others. Regarding the clauses that exclude migrant workers from a specific job, or establish quotas, or reserves, for national workers, the Constitutional Court, via Judgment C-320 / 95 of 1995, concluded that excluding foreign professionals, such as anesthesiologists, from practice violated the principle of equality and could not be justified on grounds of public order. An opposing resolution was put forward in Judgment C-1,058 / 03 of 2003, based on the normative framework of the Colombian Code of Commerce. Based on the grounds of public order, this judgment established that the head or CEO of a public service company had to hold Colombian nationality. In this instance, the court understood that the importance given to public services by the Constitution, as well as the social and economic consequences of the decisions taken by persons in such positions, might affect public order. This judgment applies an excessively broad and abstract interpretation of the concept of public order – a criticism expressed by dissenting opinions. Limiting certain jobs to nationals is analyzed more broadly in Judgment C-12,591 / 01 of 2001. In this case, the Constitutional Court resolved an appeal of unconstitutionality against a 1964 law, in which it was established that 90 per cent of ordinary workers in companies should be nationals and 80 per cent should be skilled workers. Based on protecting the domestic labour market and promoting the national workforce, the court justified the constitutionality of the rule by declaring: “[I]t is constitutionally valid that the State protects the occupations of nationals, not only due to the profound implications that the dynamics of the labour market have on a social context, but also because the regulation of the exercise of the right to work by foreigners must be in accordance with the country’s migration policy.”61 Once again, adopting a conservative standpoint, as well as ignoring the current migratory reality and restricting rights, the Constitutional Court validates the constitutionality of a rule enacted in the framework of the 1960s, which was characterized by highly protectionist policies in the labour market and almost nonexistent migratory flows. However, in no sense does the current migratory reality justify the generalized, or even private, reserves of jobs for the national population.

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For rulings on access to the SISBEN, the Constitutional Court issued Judgment C-834 / 07 of 2007 in an appeal against the unconstitutionality of Article 1 of Law 789 of 2002, which limits the system of social protection for Colombians.62 The court distinguished between two concepts that form part of different protection systems: social security and social protection. The former is the system of contributory protection and is linked to contributions from paid work.63 On that topic, the Constitutional Court ruled that the literal nature of the law does not prevent foreign workers who are in Colombia from joining a family compensation fund and being recipients of the respective family subsidy, or from being part of the general social security system, keeping up with the terms established to this effect by law. In contrast, social protection is understood as a set of public policies aimed at reducing an individual’s precarious status, and improving the quality of life of Colombians, specifically those most disadvantaged, to, at least, ensure access to the rights to health, pension, and work. As for the scope of social protection, the Constitutional Court argued that foreigners who are in Colombia have the right to a minimum of essential resources in cases of extreme need and urgency (like emergency medical treatment) Likewise, the court stated that, because of progressive economic, social, and cultural rights, coverage should be expanded without discrimination. In other words, the non-contributory system, or social assistance, is applied for situations of extreme need and urgency, while other benefits, or social aids, seem to be linked to residence. The contributory system also depends on what is established by legislation. While it is true that the court guarantees a minimum set of vital resources for migrants, the ruling represents a missed opportunity to clarify the role of immigration status (irregularity or different visa categories) when accessing social assistance. The ruling also fails to inform legislators how access to the social security system should be secured. As for guaranteeing the principle of equality and nondiscrimination, the phrase “in keeping with the terms established by law” seems to leave the legislator to act quite freely while ignoring that the Constitutional Court has established, on more than one occasion, that Article 13 is binding (with the nuances or limitations stated above) when the rights of foreigners are regulated. Last, the right of migrants to unionize has been recognized twice. In Judgment C-385 / 00 of 2000, the Constitutional Court declared that the limitations on foreigners’ right to unionize, included in the Labour Code, are not justified by reason of public order, rendering

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the rule unconstitutional. In Judgments C-311 / 07 and C-312 / 07 of 2007, the court declared the unconstitutionality of the law that modified the Labour Code and prohibited a majority of foreigners from being part of the board of directors of a union. 4.4 Social Rights In the Colombian legal system, Law 100 of 1993, which also privatized the country’s health care system, regulates access to health services. The law states that all “inhabitants of Colombia,” or residents of the country, are entitled to benefit from this norm; however, it does not specify how, and if, migrants are affected. Subsequently, Law 715 of 2002 established that everyone has the right to emergency health care without prior payment, even those without documentation. The Constitutional Court has recognized obligatory emergency health care for the migrant population on several occasions. Recently, Law 1,715 of 2015 reiterated the fact that everyone has the right to receive emergency health care without the need for prior payment. In addition, as indicated above, Resolution 3,015 of 2017 allowed Venezuelans who had been issued a P E P access to the health system. Emergency care has been defined as treatment provided to persons with injuries or an illness requiring immediate attention, so as to stabilize their vital signs, complete an initial diagnostic evaluation, or define their immediate destination.64 The rulings made to date by the Constitutional Court have been concerned with defining the scope of emergency care. In Judgment C-834 / 07 of 2007, the court declared, “foreigners in Colombia have the right to minimum vital resources, as a manifestation of human dignity, that is, a right to receive minimum attention from the State in cases of extreme need in order to meet their most basic and primary needs.” The court also added that the legislator is forbidden from restricting access to special benefits, especially with respect to health. In Judgment T-314 / 16 of 2016, regarding an Argentine citizen in an irregular situation who needed access to certain therapies and medicines following an emergency treatment for diabetes, the court ruled that health care system registration requires the person to be in possession of legal documentation that authorizes their stay in the country. However, possessing a passport was insufficient to grant access so the person was denied medication and treatment. Judgment T-728 / 16 of 2016 also denied a Venezuelan citizen in an irregular

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situation the right to register on a waitlist for a transplant. Regarding Judgment T-239 / 17 of 2017, on the treatment of a person with renal failure who subsequently died, the court ruled that emergency care should be understood as stabilizing the patient’s health to preserve their life. This includes patient referral to a service provider with the necessary means to stabilize their condition. As developed by the Constitutional Court, the scope of health protection, in the case of emergency care, is, therefore, restrictive. It is also limited to preventing the patient’s death, but does not provide for treatments and medicines in the case, for example, of chronic diseases or recovery therapies for other types of disease, such as cancer. In the three cases above, denying access to the necessary medicines, or treatment, resulted in the patient’s death. Emergency care is thus understood as the temporary lengthening of life. Despite this, and from a conservative and restrictive position, the court reiterated the limited nature of the concept of emergency care without proposing to establish greater protections by private entities, which provide health services, and the public administration itself. However, the restrictive orientation on the right to emergency health care seems to have changed in recent rulings. In the last two judgments, the court extended the level of protection of the right to health to both a minor and to a pregnant woman. In this sense, Judgment T-705 / 17 of 2017 protected the right of a child, under the age of 11 and diagnosed with Hodgkin’s lymphoma, to undergo the necessary tests to determine treatment. That same year, in Judgment 667 / 17, the court affirmed that, while pregnancy does not fall under emergency care, prenatal check-ups and medical care during child delivery should be included within the framework of protection of the right to life of women, as well as under the nasciturus rule (the rights to which the unborn are entitled). Judgment T-210 / 18 of 2018 establishes a new precedent for the protection of the right to health, considered from a much broader perspective. This judgment resolved the cases of a Venezuelan woman diagnosed with cancer and of a two-year-old Venezuelan minor with inguinal and umbilical hernias. First, the court addressed the definition of emergency care as proposed by various international organisms and, in particular, by the U N Committee on Economic, Social and Cultural Rights. The latter defines emergency care as the adoption of effective collective measures with a strong focus on public health (including vaccines and attention to direct-contact diseases), to

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guarantee prevention, protect population health and public health, and promote the general welfare of migrants who arrive in the country, as well as that of the receiving community. Second, and for the first time, the court addressed the question of the migrant population’s, specifically irregular migrants, access to health care, as a public health issue, and recognized the need to include this population in vaccination and contagious disease control programs. Third, the court referred to the impact that Venezuelan migration has had on Colombia’s public health services, holding that a writ of protection – as an extraordinary way of upholding fundamental rights – should not become the means to channel systematic failures in the protection of the right to health. In this regard, the court, taking into consideration the reports presented by the different parties to the writ of protection, was at pains to describe the reality of violations to and systematic denials of health care for the Venezuelan migrant population in an irregular situation, including emergency medical health care by private health providers. Overall, this ruling opens up a channel for establishing standards of protection above and beyond those of mere emergency care, and recognizes that the migrant population in an irregular situation should have access to health protection on terms similar to the national population. According to U N H C R data, approximately 99 per cent of registered Venezuelans, around 437,000 people, are not covered by the health system. Moreover, and as explained in the CODHES Report, part of this population does not yet have access to emergency medical systems, since they do not have a passport and / or entry stamp into the country. Health service delivery companies deny all care to people in an irregular situation. This means that chronic-care patients are not treated as part of an emergency medical care scheme, and public health policy neither provides vaccinations for minors nor seeks to avoid outbreaks of disease in these migrant groups.65

5 R e g u l at io n s f o r Expuls i ons In the Colombian legal system, the regulations governing expulsion and deportation are outlined in Decree 1,067 of 2015. The decree establishes that Migración Colombia has the authority to impose penalties in all immigration issues. This administrative body is thus responsible for managing all processes related to the permanence of foreigners in the country, as well as the norms that govern their stay in Colombia.

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Colombian legislation provides for both expulsion and deportation; yet, there is no clear conceptual difference between the two. The category of deportation is invoked in those cases in which the individual contravenes immigration regulations, while expulsion refers to judicial expulsion, without it, however, being solely restricted to this recourse. Yet, including other cases, or motives, also sanctioned with expulsion or deportation, makes it difficult to distinguish clearly between them. In this regard, a further trait of Colombian regulation is the inadequacy of the range of norms regulating immigration sanctions. In deportation and expulsion processes, numerous fundamental rights are involved, from those of personal freedom, rights linked to due process, and guarantees of defence to the right to enjoy family life. Moreover, in this instance, the administrative powers include the application of sanctions, so the principle of legality of the sanctioning administrative right must be preserved. Over the years, the Colombian legal system has always opted to regulate this procedure by a norm of regulatory rank; however, until now, none of the high courts have invoked it. The motives for deportation recognized in the decree amount to a total of eleven. Deportation motives include, first, contraventions linked to irregular entry or stay in the territory. Here, the regulations adhere to those of the vast majority of legal systems, in which noncompliance with the rules on entry and residence is sanctioned with deportation. Second, deportation is the result of the non-payment of economic sanctions imposed by Migración Colombia on the foreign national, or on the performance of an activity that lacks authorization. In this specific scenario, it should be noted that, after weighing the interests at stake, deportation could be considered a disproportionate penalty insofar as a non-serious contravention of the country’s immigration regulations results in the individual having to leave the territory in which they have attempted to settle. The third motive for deportation originates in complaints that designate the foreigner as persona non grata. Such a move constitutes a subjective and arbitrary cause based on a consideration of the individual as representing some kind of threat, and allows an administrative unit, such as Migración Colombia, to decree and execute deportation orders regardless of any reasonable or legal criteria. Under democratic principles of the rule of law, procedures of this type should not be tolerated. Cases of deportation linked to the moral behaviour of foreigners have been largely eliminated in successive reforms of immigration regulations. Nevertheless, the regulations have not simply eliminated all sanctions based on the morality or (non-criminal) social behaviour of the person

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in question. Indeed, such assumptions constitute the basis of the immigration policies of the majority of authoritarian or dictatorial states. Although Decree 1,067 does not expressly establish the possibility, once governmental channels have been exhausted, an appeal against a deportation order may be filed before the corresponding administrative judge, following the rules of administrative law. However, filing such an appeal does not automatically imply that the deportation order is suspended. In those instances in which deportation originates in the cancellation of the visa, the rule expressly eliminates the possibility of filing an appeal, thus representing a violation of the right to defence. Expulsion is available as an additional sanction in cases of criminal conviction of a foreign national. On the one hand, as a complementary measure, a judge can expel a migrant if they commit a crime, as occurs in other legal systems; on the other hand, Migración Colombia can expel a foreign national following their criminal conviction, even if it is not issued by a judge. In the latter case, the administrative order would continue to apply once the individual had served a prison sentence. However, this double sanction (criminal and administrative), as has often been pointed out by certain scholars, violates non bis in idem, (criminal law principle under which a person cannot be tried twice for the same crime) since the act of committing a crime involves not only the corresponding prison sentence, but also an additional sanction if the convicted person is a foreigner, which requires their expulsion from Colombia. Moreover, the regulations assumed by Migración Colombia do not include any specific criteria that specify in which cases the complementary sanction of expulsion should be adopted, nor do they refer to the severity of the crime committed. Indeed, ordering a migrant’s expulsion from the national territory, after they have committed a minor offence with little impact on the general public, appears to be disproportionate. In the case of an expulsion order issued by Migración Colombia, the individual can challenge this decision by administrative means, which results in a temporary suspension of that order. What is striking here is that a regulation that allows such a degree of discretion, and such a low level of judicial and administrative control, also includes the possibility of suspending the expulsion order. This possibility is considered one of the few positive elements of the protection of the rights of foreigners in Colombia. Other motives for expulsion include carrying out activities that threaten national security, public order, public health, and social peace, or the existence of intelligence information indicating that a person

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represents a risk. Once again, Migración Colombia is able to issue expulsions based on indeterminate legal concepts, which, in turn, can lead to arbitrary and discriminatory actions on the part of the administration, while also making it impossible for migrants to file an administrative appeal. Orders of deportation and expulsion fail to offer migrants full protection of their rights. Migrants’ legal defence is not guaranteed, nor do they have access to translation services (see analysis of Judgment T-956 / 13 above), no deadlines are set for the resolution of the procedures, and their right to free legal aid is not guaranteed. Also, it is unclear when they can exercise their right of reply, even if they are not subject to judicial control of detention. Altogether, the procedure is extremely vague and leaves the person subject to deportation or expulsion without the requisite resources to conduct their defence. Likewise, international tribunals – including I A C tH R and ECtHR – have, on numerous occasions, dictated that, although states have a broad power to decree expulsion or removal measures in the exercise of their sovereignty, such authority must be employed within the framework of the principles of democracy Therefore, elements such as the migrant’s right to a family life in the country of destination, the number of years of residence, the degree of integration attained, and the situation in their country of origin, among others, need to be taken into consideration when issuing an expulsion order. The right to personal freedom and the prohibition of arbitrary detention mean that a judge must, in all cases, control a detention order. In Colombia, individuals have been kept in detention without being brought before the court within the established period of thirty-six hours. Finally, the procedure described does not prevent collective deportations or expulsions from taking place outside of any determined scheme or without respecting certain guarantees. The CODHES Report highlights, in the case of Venezuelan nationals, accounts of mass deportations without individualized procedures being initiated, as well as due consideration not being given to the personal and family situation of foreigners, or to their need for international protection.66

6 C o n c l usi on In Colombia, the normative body regulating migration is conspicuous, above all, by the clear absence of a specific law on immigration. While it is true that the 1921 Law remained in effect until 2006, when the

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Colombian Constitutional Court declared it unconstitutional, the Law only contained seven articles, and its regulations were so brief and generally stated that it seems impossible to argue that their existence resulted in the regulation, or even in the most basic control, of immigration in Colombia. This legislative gap has, in part, been addressed by a number of decrees regulating procedures for visa applications, residence, expulsions, and deportations. Throughout the 1980s and 1990s, immigration in Colombia was largely an irrelevant issue and, thus, it is understandable that its regulation was not positioned as a priority in the country’s legislative agenda. Moreover, faced with low levels of incoming migratory fluxes, mainly associated with family or business motives, the normative response to migration was an infralegal norm. However, some forty years later, immigration trends have changed substantially, specifically along the border with Venezuela, where flows of people in need of international protection are pouring into the country. The absence of a rights perspective in Law 1465 of 2021 confirms that Colombia lacks an immigration policy focused on human rights. In this sense, it is striking that the regulation of immigration continues to be done by means of decree, while the majority of Latin American countries have already enacted immigration laws. A second characteristic of Colombian immigration regulations is the extreme short-term validity of their decrees and their frequent reforms. Since Decree 2,955 of 1980, there have been a total of eleven reforms, many of which have not remained in force for more than a year. The constant reforms seem to reflect the fact that migration dynamics have largely determined normative modifications. This has made it impossible for the Colombian government to develop an immigration policy that facilitates the long-term regulation of migratory flows. This overall legal instability has impeded the development of policies that promote, or, at the very least, channel migratory flows in an orderly and legal manner. At the same time, the above scenario has given rise to situations of considerable legal uncertainty and resulted in the violation of the rights of migrants who have entered, or who reside in, Colombia. The Colombian legal system has failed to address immigration as a structural issue that will modify the country’s demographic and social landscape over the next few decades. The limited response to the mobility crisis in Venezuela is proof of this. A third, and final, characteristic of Colombian immigration regulations is its excessive fragmentation in matters related to visas and migrants’ rights. The country therefore urgently needs a reform that

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can provide a greater systematization of visas for migrants and regulate their rights based on the principles of recognition and protection provided for under various international treaties. Moreover, current regulations are extremely permissive in the discretion granted to the administrative authorities responsible for managing residence permits, expulsion procedures related to the recognition of nationality, and refugee status. The procedures employed to date mean that the levels of discretion that are granted border at times on arbitrariness, specifically in the absence of any protection of rights (including the right to a defence, access to a lawyer and the necessary resources, motivation of decisions, deadlines, judicial control of decisions, etc.). Principles such as good faith, legitimate trust, and the prohibition of arbitrariness are absent in Colombia’s immigration procedures. In this regard, one of the challenges of the systematization of migration is the incorporation of democratic principles to the field of immigration. The different degrees of equality of trial, in relation to the circumstances of each case and the law, are considered a consequence of the interpretation of the rights, from the point of view of a concrete case. However, in the absence of a catalogue of the rights of migrants, which provides a limit to the exercise of powers, the case-by-case interpretation, depending on the right at stake and the specific ­circumstances, deepens the fragmentation or dispersal of migrants’ rights. Overall, it is also striking that the Constitutional Court has not yet discussed the range of norms with which the rights of foreigners are regulated. Not e s  1 The introduction of this chapter is the result of a joint collaboration between Soledad Castillo Jara, a researcher from the Universidad del Pacífico (Lima, Peru), and I. The author would like to thank Soledad for her contribution.   2 Law 13 of 1823; Law and Decree of 11 April 1843 on the Naturalization of Foreigners; Law of 9 June 1881.   3 María A. Gómez, “La política internacional migratoria colombiana a ­principios del siglo XX,” Memoria y Sociedad 13, no. 26 (2009); Frédéric Martínez, “Apogeo y decadencia del ideal de la inmigración europea en Colombia, siglo XI X,” Boletín Cultural y Bibliográfico 34, no. 44 (1997).   4 Martínez, “Apogeo y decadencia”; William Mejía Ochoa, “Colombia y las migraciones internacionales: evolución reciente y panorama actual a partir

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de las cifras,” REMHU , Revista Interdisciplinar da Mobilidade Humana 20, no. 39 (2012).   5 Gómez, “La política internacional migratoria,” x.   6 Mejía Ochoa, “Colombia y las migraciones,” x.   7 Ibid.   8 Mauricio Cárdenas, and Carolina Mejía, “Migraciones internacionales en Colombia: ¿qué sabemos?,” FEDESARROLLO Working Papers no. 30 (2006).   9 Ibid. 10 Ibid. 11 Among other provisions, the decree introduced an ordinary visa that ­permitted individuals practising a profession, art, or trade to live in the country for a period of up to two years. At the end of these two years, they could apply for indefinite residence (ordinary visa section V I). 12 Decree 2,268 of 22 December 1995. This legal norm was preceded by two reforms: Decree 666 of 1992 and Decree 241 of 1993. The regulations continue to be concerned with small-scale migration and do not constitute a specific migration policy. 13 Decree 2,268, Art. 7: “The entry of immigrants will be encouraged in the following cases: 1. When, due to their experience, personal, or professional qualifications, the foreigner enters the country to engage in activities or programs of public or private development of an agricultural, farm-­ industry, natural industry, fishing, forestry, tourism, educational, social or cultural nature, and for which there are no trained nationals in the country for their execution, or they are insufficient to meet the demand; 2. Immigration that contributes scientific-technological development, activities that generate employment; 3. Immigration that contributes capital investment in productive activities or for the establishment of large and medium enterprises; among others.” 14 Decree 2,268 of 1995; Decree 237 of 1996; Decree 2,191 of 2001; Decree 4,000 of 2004. 15 Organización Internacional para las Migraciones, Perfil Migratorio de Colombia 2012 (Bogotá: OI M , 2013). 16 Beatriz E. Sánchez Mojica, “El enfoque de derechos en las políticas migratorias. El caso colombiano,” in Manual de Derechos Humanos y Políticas Públicas, ed. Laurence Burgorgue-Larsen, Antonio Maués, and Beatriz E. Sánchez Mojica (Barcelona: Red de Derechos Humanos y Educación Superior, 2014). 17 Ibid. 18 Alessandra Ciurlo, “Nueva política migratoria colombiana: El actual enfoque de inmigración y emigración,” Revista Internacional de Cooperación y Desarrollo 2, no. 2 (2015).

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19 María T. Palacios Sanabria, “El sistema colombiano de migraciones a la luz del derecho internacional de los derechos humanos: la Ley 1465 de 2011 y sus antecedentes normativos,” Opinión Jurídica 11, no. 21 (2012). 20 From an administrative perspective, Decree 1,239 of 2003 provided for the creation of the Comisión Nacional Intersectorial de Migración, and Law 1,465 of 2011 for that of the National Migration System. 21 Expanded M ERCOS U R member countries (Mercosur ampliado) refer to the group of countries that became part of MER C OSUR several years after its foundation, although under different access conditions. These countries are Colombia, Peru, Ecuador, and Bolivia. 22 CODHES et al., Necesidades de protección de las personas venezolanas forzadas a migrar, refugiadas y en riesgo de apatridia en Colombia. Informe país como aporte a la audiencia temática 168 período de sesiones de la Comisión Interamericana de Derechos Humanos (CIDH ) en República Dominicana (Bogotá: CODHES, 2018). 23 Migración Colombia, “Total de Venezolanos en Colombia corte a 31 de diciembre de 2019,” Infografías 2020, last accessed on 11 May 2020, https://www.migracioncolombia.gov.co/infografias/259-infografias-2020/ total-de-venezolanos-en-colombia-corte-a-31-de-diciembre-de-2019. 24 Migración Colombia, “Más de 1 millón 825 mil Venezolanos estarían radicados en Colombia,” Noticias Abril 2020, last accessed on 11 May 2020, https://www.migracioncolombia.gov.co/noticias/265-abril-2020/mas-de1-millon-825-mil-venezolanos-estarian-radicados-en-colombia. 25 A coordination platform for Venezuelan refugees and migrants; R 4 V , “Respuesta a los Venezolanos,” R4V, last accessed on 11 May 2020, https://r4v.info/es/situations/platform. 26 Resolution 740 of 5 February 2018; Resolution 10,677 of 28 December 2018; Resolution 240 of 23 January 2020. 27 C O D H E S et al., Necesidades de protección. 28 Jessica Corredor Villamil, and Lucía Ramírez, “Coronavirus y migración: ¿respuestas desiguales?,” Dejusticia, last accessed on 11 May 2020, https:// www.dejusticia.org/coronavirus-y-migracion-respuestas-desiguales. 29 Article modified by Legislative Act 1 of 2002. 30 According to Circular 168 of 2017, having domicile in the country requires the individual to be a holder of a type M (migrant) visa, or to fulfill the specific requirements of a type V (visitor) visa (granted for academic programs; entry to work or perform services; entry for religious reasons; being a refugee or asylee; national spouse, or partner, of a Colombian national of a MERCOSUR member state). 31 To acquire Colombian nationality, the applicant must satisfy the following requisites: not have a criminal record in the past five years, be able to justify

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the number of years of residence with a corresponding residence visa, ­demonstrate knowledge of Spanish (except for bordering Indigenous ­populations and nationals of Hispanic countries), and have a basic knowledge of the constitution, national history, and geography of Colombia. 32 C O D H E S et al., Necesidades de protección. 33 Decree 1,260 of 27 July 1970, by which the Statute of the Registry of the Civil Status of Persons is issued (Art. 48). 34 This procedure is regulated by Decree 356 of 2017, which modifies Section 3, Chapter 12, Title 6, Part 2, Book 2 of Decree 1,056 of 2015, titled Sole Regulatory Decree of the Justice and Law Sector. The norm, referring to extraordinary registration and witnesses, dates back to 1970 (Art. 50 of Decree 1,260 of 1970). 35 C O D H E S et al., Necesidades de protección. 36 National Civil Registry Bulletin 216 of 2016. 37 National Civil Registry Bulletin 64 and 145 of 2017. 38 Doctrine of the Constitutional Court transposed to National Civil Registry Bulletin 168 of 2017. 39 National Registry of Civil Status Notice 168 of 2017. 40 The paragraph reads as follows: “Exceptionally, the residence and spirit of permanence in Colombia will be presumed of Venezuelan people in regular or irregular migratory situations, or applicants for refuge, whose sons and daughters have been born in Colombian territory since 10 January 2015 and up to two years after the promulgation of this law.” 41 See Case E CtHR Soering v. the United Kingdom; Case EC tHR Hirsi Jamaa and Others v. Italy; Case ECtHR M.S.S. v. Belgium and Greece; Case E C tH R Jabari v. Turkey; Case ECtHR D. and Others v. Turkey; Case E C tH R Salah Sheekh v. the Netherlands; Case EC tHR Sufí and Elmi v. The United Kingdom. 42 Judgment T-212 of 2013. 43 C O D H E S et al., Necesidades de protección. 44 Ibid. 45 Via Resolution 3,548 of 2019. 46 The validity of this visa depends on the activity that the foreigner is to perform and varies between thirty days for the transit visa, six months for tourism, business, studies, or lecturing visas, or one year for vacation-work programs. This visa also allows the incorporation of work authorizations, as in the case of lecturers, internships, audiovisual production, and foreign press correspondents, among others. 47 Spouses or permanent partners, as well as parents or adopted children of a Colombian national.

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48 In this case, the R-type visa is granted to people who had been ­nationals and renounced their Colombian nationality. This may have occurred when, in a context of high levels of emigration, Colombian nationals had to renounce their nationality to acquire that of their new country of ­residence in the absence of an agreement to facilitate dual nationality. 49 Decree 2,268 of 1995; Decree 237 of 1996; Decree 2,191 of 2001; Decree 4,000 of 2004. 50 Resolution 5,797 of 2 August 2017, “Whereby the Special Permit of Permanence – PEP – created by Resolution 5,797 of 2017 of the Ministry of Foreign Affairs, is implemented to grant persons registered in the Venezuelan Migrant Administrative Registry, in accordance with the provisions of Resolution 6,370 of 1 August 2018.” 51 R4V, “Respuesta a los Venezolanos.” 52 UNH C R , 2019. 53 February 2019; September 2019; and February 2020. 54 Resolution 740 of 5 February 2018; Resolution 10,677 of 28 December 2018; and Resolution 240 of 23 January 2020. 55 Constitution, Art. 13. 56 Constitution, Art. 100. 57 Judgment C-768/98 of 1998. 58 I A C tH R Advisory Opinion OC-18/03 on the legal status of undocumented migrants. The I ACtHR also quotes the Supreme Court of the United States of America, in the case of Trimble v. Gordon, where it “considered that classifications based on national origin were “first cousin” to those based on race; accordingly, they related to areas where it was necessary to apply the principle of equality and equal protection.” 59 Subject Gaygusuz v. Austria (App. 17,371/90) of 16 September 1996; ­Marie-Bénédicte Dembour, “Gaygusuz Revisited: The Limits of the European Court of Human Rights’ Equality Agenda,” Human Rights Law Review 12, no. 4 (2012); The strict judgment of reasonableness has also been extended to ­differences based on race. See D.H. and Others v. the Czech Republic, of 13 November 2007, (App. 57,325/00), paragraph 175; Timishev v. Russia, of 13 March 2006, (App. 55,762/00 and 55,974/00), paragraph 56; Oršuš and Others v. Croatia, of 16 March 2010, (App. 15,766/03), paragraph 149; Fernando Rey Martínez, “La discriminación racial en la jurisprudencia del Tribunal Europeo de Derechos Humanos,” Pensamiento Constitucional 17, no. 17 (2012). 60 I A C tH R Advisory Opinion OC-18/03. 61 Constitutional Court, Judgment C-12,591/01 of 2001.

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62 Law 789, Art. 1. Social protection system. The social protection system is constituted as a set of public policies aimed at reducing vulnerability and improving the quality of life of Colombians, especially the most vulnerable. To obtain at least the right to health, pension and work. […] In health, the programs are focused on allowing Colombians to access social services in conditions of quality and opportunity. 63 Social security is a mandatory public service, which can be provided by public or private entities, as established by law, under the direction, coordination and control of the State and subject to the principles of efficiency, universality and solidarity. Judgment C-834/07 of 2007, Section 5. 64 Decree 780 of 2016. 65 C O D H E S et al., Necesidades de protección. 66 Ibid.

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5 The Limits of Regularity and Irregularity in Ecuador’s Organic Law on Human Mobility J a v i e r A r c e n t a les Illesc a s a n d   G a r d e n i a C há v ez N ú ñ ez

1 In t ro du c t io n : T h e Si gni fi cance of E cua d o r ’ s O r g a n ic L aw on Human Mobi li ty Based on a human rights perspective, this chapter offers a critical reflection of the drafting and content process of the Organic Law on Human Mobility (L OMH), which was unanimously passed by the National Assembly of Ecuador on 6 January 2017,1 approved by the executive on 28 January, and came into effect days later on 6 February.2 These events established the responsibility of the then president of the Republic, Rafael Correa, to issue the law’s regulations within 120 days. However, this period expired on 5 June 2017 without the necessary pre-emptive measure being taken. The regulations for the LOMH were eventually approved via Executive Decree No. 111 on 3 August and published in the Supplement of Official Register No. 55 on 10 August 2017, which was later amended in April 2018. It is important to point out that the then president signed the bill without making any changes while recording Enlace Ciudadano, an Ecuadorian government radio and television program, during a visit to Barcelona. The Ecuadorian population residing in Spain congregated at this event, and was part of the president’s European tour. The

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day before the recording, Correa carried out a series of activities in Italy and met with the Ecuadorian community in Milan. All of these events took place in the midst of the presidential and congressional elections, held on 19 February 2017. On the one hand, the Ecuadorian government’s enactment of the LOMH was praised by a number of international organizations, such as the United Nations High Commissioner for Refugees (U N H CR), which stated, “Ecuador offers an example of comprehensive protection for all people on the move, assuming not only its international responsibilities, but also enacting the rights recognized in the Ecuadorian Constitution.” 3 Similarly, in a statement, the InterAmerican Commission on Human Rights (IACHR) discussed several improvements related to the human rights of people on the move, and took up what was pointed out by the U N H CR.4 However, the IA C HR also warned about some concerning aspects, and “believes that several of the previous aspects could be rectified by issuing regulations to the law that are in line with inter-American norms and standards, and by establishing objective and non-discretionary criteria for their enforcement.”5 The country’s reaction, on the other hand, was mixed, ranging between praise, recognition for the law’s advances, and criticism. In March 2017, lawyer Óscar Valenzuela Morales filed an unconstitutionality claim with the Constitutional Court, based on the premise that the L O M H discriminates against people on the move.6 Many aspects of L O M H have negative implications for human rights and thus require careful analysis. Given the breadth of these aspects, our analysis is limited to the LOMH’s treatment of regularity and irregularity of human mobility. We first provide a brief overview of human mobility in Ecuador, which is grounded in an understanding that every norm adopted is the product of a specific era, and, at the same time, that its respective regulations have an effect on future social relations and dynamics. We then analyze the central contents of the 2008 Constitution of the Republic of Ecuador,7 assuming that these should respond to the L O M H . We proceed by examining the LOHM’s treatment of the relationship between regularization and irregularity, comparing the previous and current secondary regulatory framework. Afterwards, we reflect on the incoming flux of Venezuelan migrants to Ecuador, which poses serious challenges for understanding this unprecedented dynamic and for protecting the rights of people on the move. Finally, we offer some concluding remarks.

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2 C h a n g in g M ig rati on Flows From the late 1990s to the early 2000s, Ecuador experienced significant transformations in the field of human mobility, particularly in immigration and emigration flows, as well as the return of Ecuadorian citizens. These transformations were shaped by a deep and widespread crisis that spanned economic, environmental, political, legal, and cultural spheres. The main elements included El Niño–Southern Oscillation and its effects;8 the drop in the price of oil, which was the country’s main source of foreign exchange; political instability, which led to the dismissal of two presidents;9 the collapse of the financial system, and its subsequent rescue;10 and the dollarization of the monetary system,11 all illustrating the magnitude of the crisis. The consequences were devastating for the vast majority of the country, but enriched the elites.12 During the crisis, in 1998, Ecuador adopted a new constitution, a landmark in human rights because of its extension of rights. Nonetheless, at the same time, the constitution authorized the state, using a neoliberal approach, to bail out banks, thus establishing that the power of the Central Bank was to grant “stability and solvency credits to financial institutions, as well as credits to meet the right of preference of natural depositors in institutions that enter into liquidation processes.”13 One of the consequences of the crisis was to accelerate the increase in international emigration. In fact, “thousands of Ecuadorians, more than 500 thousand people (more than 10% of the economically active population), fled the country.”14 The destinations were diverse: Spain and Italy were among the first European countries with growing Ecuadorian communities, while the US also served as one of the main destinations for this population. In the following years, Ecuador became a country whose economy consisted of remittances as the second source of foreign exchange, after oil. Overall, income from remittances constituted US$794 million in 1998, $1,084 million in 1999, $1,317 million in 2000, and $1,604 million in 2004.15 The link between the crisis, the exodus of Ecuadorian nationals, and the importance of remittances would become a political talking point. In his inauguration speech, President Correa said: “The Homeland returns, and with it […] millions of brothers and sisters expelled from their own land in that national tragedy called migration […] Without a doubt, the greatest cost of the failure of the neoliberal model and the consequent destruction of employment has been emigration.”16 A decade later, in his Milan speech given before ratifying the LOMH, and three months after finishing his term, Correa argued:

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Our Government will be the Government of migrants. We have to settle accounts with history […] How we admire our migrants! […] You give us an example of life […] What am I next to all of you who, exiled from your own country by bank robbery, never forgot her [Ecuador]? […] This tragedy created millions of migrants. When we managed to recover, thanks to your remittances, you were doubly punished by the greed of foreign capital that dominates the world […] as long as I am President, as long as the Citizen Revolution continues, you will never be alone. We gave you all of the legal support […] That legal support has been an example for many other countries, an example even for European courts. This is the decade of triumph. Ecuador has already changed […] the title I like the most is when they call me the government of migrants.17 Until the L O M H was adopted, immigration policy in Ecuador had been characterized by its biases. The government prioritized the situation of the Ecuadorian population abroad and their return, and relegated other types of mobility to second place, especially migrants in forced internal displacement, such as that caused by El Niño in 1997–98, and by the dire economic conditions. No specific policies were designed to deal with the displacements caused in later years by extractive projects. In fact, the violations of these people’s rights have yet to be addressed. From a different perspective, the dollarization of the national currency was a contributing factor for the entry of people from border countries, such as Peru and Colombia, who arrived in the country to carry out economic activities and obtain a strong currency, which they later changed in their home countries at a beneficial rate. In the case of Colombian mobility, the implementation of Plan Colombia in 200018 played a substantial role in the increase in internal displacement and the Colombian diaspora. The growing number of people who were seeking asylum in Ecuador increased dramatically: from 827 applicants up until 1999 to 1,667 in 2000; 5,908 in 2002; and 12,463 in 2003. Up until January 2013, there were 164,528 applicants.19 Overall figures reveal that, between 1983 and 2018, 221,602 requests for refugee protection were received, out of which 70 per cent were people with Colombian nationality, and 26 per cent with Venezuelan nationality. Likewise, between 1989 and 2018, the Ecuadorian state recognized 65,303 people from 70 countries as refugees, with Colombians constituting 98 per cent.20

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In recent years, however, the Venezuelan migration crisis has altered that scenario. As shown in figure 5.1, the number of asylum applications submitted by Venezuelan citizens in Ecuador has increased considerably since 2014. Suffice to say, this increase is larger than that in most other countries. As of 2019, around 250,000 Venezuelan citizens were residing in Ecuador, making Ecuador the third largest receiver of Venezuelans in a Latin American country, after Colombia and Peru (see figure 5.2).21 Up until December 2018, Venezuelan citizens had filed 13,535 asylum applications to be able to stay in Ecuador.22 Speeches and actions on the matter generate support for refugees, as well as a discussion on national security, which is often conflated with Colombian mobility. In recent years, the call for migratory regularization has led to the Southern Common Market (M E RCO S U R) visa, in turn preceded by the Union of South American Nations (U N AS U R) visa after the L OMH was adopted. It is important to consider that the Colombian peace accords23 might lead to the return and repatriation of nationals residing abroad immediately or in the long term, depending on the measures implemented by current president Iván Duque. According to the LOMH, people coming from any UNASUR member country, including Venezuela, should be allowed to enter, and reside in, Ecuador.24 Article 84 of the LOMH prescribes that this group can request temporary residence for up to two years, which can later become permanent. Likewise, under Article 61, both entrance and residence can be processed with a passport (with at least six months of validity), or with an identity card, in addition to other administrative requirements, such as the payment of U S D 450 and a certificate of criminal records.25 However, as of 2018, restrictions on the free entry of Venezuelan people were introduced, beginning with the introduction of a passport requirement in August 2018,26 which was subsequently suspended by a judicial decision.27 In January 2019, after a wave of xenophobic attacks following a case of femicide in the city of Ibarra, Venezuelans were required to present their apostilled criminal records upon entry.28 Altogether, there has been an increase in incoming flows of people hailing from different countries and continents. While in some cases Ecuador served as the final destination, in others it constituted a transit country. The flows operate under a framework of regional and global dynamics that seek to promote Ecuador as a tourist destination, which encompasses the withdrawal of visas as an entry requirement for the majority of nationalities. According to several reports, it is assumed that the majority of immigration flows from neighbouring countries take place irregularly,

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40,000 35,514

35,000

31,369

30,000 25,000 20,000

17,607

15,035

15,000

14,171

11,463

10,000

7,858 6,766

5,000 0 1998

1,666

12,090 8,280

7,784

5,080

7,091

3,455

2000

0

2002

2004

2006

2008

2010

2012

6,751

0

2016 2018

2014

Figure 5.1 Total asylum applications filed in Ecuador per year, 2000–17 Source: UNHCR, http://popstats.unhcr.org/en/asylum_seekers.

1,800 1,530

1,600 1,400 1,200 1,000 800 600 400 1

4

3

3

4

10

6

15

36

13

4

13

0

0

0

2002

2003

2004

2005

2006

2007

2008

2009

2010

2011

2012

2013

2014

2015

2016

200

2017

0

Figure 5.2 Total asylum applications filed by Venezuelan citizens in Ecuador, 2000–17 Source: UNHCR, http://popstats.unhcr.org/en/asylum_seekers.

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Table 5.1 International entries and exits, general movement, 2015–18

Year 2015 2016 2017 2018*

INEC yearbooks international entries and exits

Ministry of Interior migratory flows 2015–18

Arrivals

Exits

Balance

Arrivals

Exits

Balance

2,919,356 2,911,927 3,114,763

2,862,444 2,929,849 3,065,412

56,912 -17,922 49,351

2,809,568 2,905,700 3,121,040 3,438,235

2,790,382 2,918,324 3,070,897 3,353,166

19,186 -12,624 50,143 85,069

Variation of balances 37,726 -5,298 -792

*Cutoff: 19 November 2018. Source: https://www.ecuadorencifras.gob.ec/entradas-y-salidas-internacionales.

and that some migrants use the services of human smugglers. For decades, migration to the US has been carried out irregularly, facilitated by illicit services, putting at risk the lives and integrity of people who move clandestinely, such as a significant number of unaccompanied children and adolescents. Related activities, such as human trafficking, show signs of increase in the same way as irregular migration. This phenomenon is also increasing both in the case of Ecuadorian citizens as well as for other nationalities entering the country. The recent crises in Europe and the US led to unwanted and forced processes of return. In 2008, 10,999 Ecuadorian citizens returned from Spain. In 2009, the figures climbed to 17,348, and, by 2013, they had reached 28,750. It is important to state that a small fragment of the returnee population re-migrates when they arrive in Ecuador.29 These international crises have also led to a significant increase in Spanish and North American immigration to the country. Official information on the registry of international migratory movements helps illustrate the magnitude of some of these dynamics, as well as changes over time. However, to this day, there are differences between the public information offered by state institutions, such as the National Institute of Statistics and Censuses (INEC), the governing body in statistical production, and the Ministry of the Interior, which periodically disseminates information on international migration (see table 5.1). According to the I N E C , in 1997, the total movements of migrants resulted in 1,541,917 records of entries and exits. In 2006, the number had almost doubled, with 3,027,666 migratory movements. For 2017, the figure again doubled, with 6,180,175 movement records.30 This trend reveals that, within a span of two decades, international mobility quadrupled.

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200,000 175,922 165,215

150,000 138,330

100,000

127,135

91,108 74,407

57,130

42,977

66,563

40,735

50,512

30,931

17

16

20

15

20

14

13

20

12

20

11

20

10

20

09

-5,092 -3,105 -5,241

20

08

20

07

20

06

20

05

20

04

20

03

20

02

20

00

01

20

20

90

20

19

98

-6,655

19

97

0 19

41,022

23,274 8,661

5,477

20

50,000

-50,000

Figure 5.3 Migratory balances of Ecuadorian nationals’ mobility, 1997–2007 Source: Created by authors based on data from https://www.ecuadorencifras.gob.ec/entradasy-salidas-internacionales.

As shown in figure 5.3,31 four main phases mark the exit of Ecuadorians throughout the years. The first phase, between 1999 and 2003, encompasses the five highest figures of migration balances, and accounts for emigration as a strategy to confront the previously outlined economic crisis. During the second phase, between 2004 and 2008, the decreasing tendency to leave the country coincides with the country’s economic recovery. The third phase, between 2009 and 2013, which coincides with the financial crises in Spain and the US, is marked by the return of nationals, a majority of whom had previously been forced to migrate. Finally, similar to the second phase, the fourth one presents a new increase in the number of Ecuadorians exiting the country. Ecuadorians who have left the country currently reside in nearly every country in the world. However, 82 per cent of migrants tend to live in the top five main destinations – the US, Peru, Colombia, Spain, and Panama. Similarly, 92 per cent of migrants tend to live in the top ten destination countries, which also comprise Mexico, Chile, Argentina, Italy, and Brazil. Only 3 per cent live outside the top twenty destinations. Overall, 45 per cent of Ecuadorian migrants reside in Latin American countries, and 52 per cent in “first-world” countries32 (figure 5.4).

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3%

52%

45%

US, Spain, Italy, Canada, United Kingdom, Germany, France, and Holland Peru, Colombia, Panama, Mexico, Chile, Argentina, Brazil, Venezuela, Cuba, Dominican Republic, Bolivia, and Costa Rica Others

Figure 5.4 Percentages of Ecuadorian emigrants residing in the top twenty destination countries, 2017 Source: Created by authors based on data from https://www.ecuadorencifras.gob.ec/ entradas-y-salidas-internacionales.

Table 5.2 International entries and exits of non-nationals, 2015–18

Year

INEC yearbooks international entries and exits

Ministry of Interior migratory flows 2015–18

Entries

Entries

Exits

2015 1,544,463 1,464,277 2016 1,418,159 1,378,951 2017 1,608,473 1,518,100 2018*

Balance

Exits

Balance

80,186 1,444,251 1,398,001 46,250 39,208 1,414,324 1,374,751 39,573 90,373 1,613,553 1,522,031 91,522 2,167,677 2,052,277 115,400

Variation of balances 33,936 -365 -1,149

*Cutoff: 19 November 2018. Source: Created by the authors based on data from https://www.ecuadorencifras.gob.ec/entradasy-salidas-internacionales.

Table 5.2 showcases an important increase in immigration flows to Ecuador from other nationalities to illustrate the international entries and exits of non-nationals. The variation in balances shown in table 5.1 mostly corresponds to the entry records of non-nationals. Using INEC figures for 1997 to 2017, the evolution of the migratory balances of the non-national population in Ecuador increased significantly between 2000 and 2005. During this time, Ecuador became an attractive location because of the dollarization of the exchange system, and because, in Colombia, Plan Colombia was implemented. In

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300,000 250,000

240,975

200,000

182,164

195,416 176,549

175,780

150,000

156,333

127,382

100,000

90,373

121,646 80,186

109,024 61,170

50,000

40,650 39,475

54,921 75,506 54,098 54,422

41,676

39,525

39,208

17

16

20

15

20

14

20

13

20

12

20

11

20

10

20

09

20

08

20

07

20

06

20

05

20

04

20

03

20

02

20

01

20

00

20

90

20

98

19

19

19

97

0

Figure 5.5 Migration balances of non-nationals in Ecuador, 1997–2017 Source: Created by authors based on data from https://www.ecuadorencifras.gob.ec/entradasy-salidas-internacionales.

addition, from 2006 – when Plan Colombia ended – until 2013, the overall migratory balance decreased. The last period (2014 to the present) is characterized by a new increase in the migration balance, which is linked to the humanitarian crisis and consequent exodus in Venezuela (figure 5.5). As detailed in figure 5.6, as of 2017, non-nationals arriving to Ecuador mostly came from nine Latin American countries, and represented 58 per cent of the total. Figure 5.7 reveals that the group of Latin American countries represents 91 per cent of the overall migration balances. The noticeable variation in figure 5.6 is related to the promotion of tourism in the country, one of the important reasons for entry. As outlined in this section, the magnitude of mobility in the Latin American region, both as a destination for the Ecuadorian population, as well as for immigration into Ecuador, is particularly relevant. A detailed study of these dynamics will yield information on the complexity of the reasons for the activation and deactivation of these flows. Despite the significant human mobility in the country, the policies adopted thus far have been inadequate. They have been characterized

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Other countries

9.8%

US, Spain, Germany, China, Canada, United Kingdom, France, Philippines, Italy, Netherlands, and India

31.8%

Colombia, Venezuela, Peru, Argentina, Chile, Mexico, Cuba, Brazil, and Panama

58.4%

0

100,000 200,000 300,000 400,000 500,000 600,000 700,000 800,000 900,000 1,000,000

Figure 5.6 Main nationalities entering Ecuador, 2017 Source: Created by authors based on data from https://www.ecuadorencifras.gob.ec/entradasy-salidas-internacionales.

Other countries

4%

US, Spain, Germany, China, Canada, United Kingdom, France, Philippines, Italy, Netherlands, and India

6%

Colombia, Venezuela, Peru, Argentina, Chile, Mexico, Cuba, Brazil, and Panama

91%

0

10,000 20,000 30,000 40,000 50,000 60,000 70,000 80,000 90,000

Figure 5.7 Main nationalities in Ecuador according to migration balances, 2017 Source: Created by authors based on data from https://www.ecuadorencifras.gob.ec/entradasy-salidas-internacionales.

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as not basing mobility rights around a central axis. Rather, the measures have been adopted depending on migrants’ nationalities and in response to particular circumstances. This has led to the mass expulsion of the immigrant population and its exclusion. There is no policy of systematic regularization. In summary, in the midst of national and international economic crises, and of several factors characteristic of the global system and the environment, Ecuador became a country of multiple, complex, and interrelated forms of human mobility. They constitute: the regular and irregular exit of the Ecuadorian population; the regular and irregular entry of people of various nationalities and for various purposes (such as tourism, family visits, transit, and permanence); border migration; forced internal displacement; mobility associated with human trafficking; and services associated with irregular migration. The LOMH was expected to comprehensively respond to the complex realities of human mobility in the country, and guarantee the rights of people in mobility, as outlined in the constitution. However, this only partially happened.

3 T h e 2 0 0 8 C o n sti tuti on a n d   t h e   H u m a n   Mobi li ty Law A different environment was evident during the 2006 Ecuadorian presidential election. The population’s discontent, sparked by the crisis, resulted in a strong yearning and demand for structural change and a re-foundation of the country. Thus, once again, this materialized into a new constitution. It was in this context that Rafael Correa became president in November 2006, carrying forward his main campaign proposal: to convene a Constituent Assembly, ratified in April 2007 by a popular consultation. The elections of assembly members were held in September of the same year, and the assembly began its functions two months later. By October 2008, the country had a new constitution. The issue of mobility emerged as an important political issue, especially the situation and demands of the Ecuadorian population abroad. Whether focused on humanitarian assistance, intervention programs, or research, many civil organizations working on the topic of human mobility intervened in this constitutional context. They also spearheaded actions to demonstrate the magnitude of the transformations of human mobility in the country and its local, national, and

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international repercussions, as well as to generate reflection spaces to achieve better results. Some of their proposals were considered during the constitutional process and adopted in the 2008 Constitution.33 Many scholars have described the Ecuadorian Constitution as one in which the protection of rights plays a dominant role. Inserted in neo-constitutionalism, the 2008 Constitution extended and strengthened existing rights and guarantees, as well as established new rights and principles, such as the rights of human mobility that are noted in more than fifty articles in various sections of the Constitution. Its main contents are grouped below. Universal citizenship is established as a principle that encourages the transformation of global relations of inequality. Accordingly, it promotes: free mobility; the creation of Latin American and Caribbean citizenship; the gradual elimination of foreign status; the implementation of guarantees of rights in border areas for refugees; and the full exercise of the rights of migrants and respect for them.34 This content is located in the international relations section of the Ecuadorian Constitution. Therefore, the importance of mobility rights exceeds the country’s internal affairs. In addition, the obligations for people’s mobility are part of a broader proposal that incorporates the promotion of world peace and disarmament; a multipolar global order with horizontal relations between states; the decrease of regional and global asymmetries; autonomy, not subordination or interference; integration; regional protection; and the recognition of diversity and the guarantee of rights; among others.35 The topic of human mobility rights is the main breakthrough in the formulation of specific mobility rights. These constitute a section of the chapter titled “Rights of Priority Persons and Care Groups,” but are not limited to it. Throughout the constitutional text, other benefits can be found. They are summarized as follows: The right to migrate is very important because it is established broadly, with the exception of internal migration to the Special District of Galapagos, to guarantee the islands’ protection. The right to migrate is in line with the freedom of transit and residence, and establishes that no person will be considered illegal, or identified as such, because of their immigration status. The emphasis on the Ecuadorian population abroad is noteworthy; seven sections guide the actions of the state in this field. In contrast, this does not happen with other issues or groups of people in mobility. The right of asylum, already present in Ecuadorian regulations, appears alongside the right of

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refuge, and, in both cases, a similar responsibility of the state is established. In addition, the exceptional possibility of recognizing the refugee status of a collective is introduced. The prohibition of any arbitrary displacement and the right to receive attention and to return to one’s place of origin voluntarily, safely, and with dignity are also important advances, since, in the 1998 Constitution, the right to not be displaced was solely applied to Indigenous peoples.36 However, the term “arbitrary” differs from forced types of displacement and is limited because, in the case of people displaced by natural or anthropogenic disasters, they are not referred to in this sense, but as victims with the right to priority attention.37 The principle and law of equality and non-discrimination are generally recognized both in national and international legal systems. The 2008 Constitution maintains the provisions on the matter laid out in the previous charter, which states that it is the duty of the state to guarantee rights without inflicting any kind of discrimination on its inhabitants. It also incorporates specific aspects, such as non-­ discrimination by origin and migratory condition, the rejection of xenophobia, and equal rights between foreigners and Ecuadorians. Importantly, the Constitution points out specific restrictions, regarding residence time and participation in high-ranking positions or for security purposes, for the those groups of people.38 Specific protection is another relevant aspect, and is shown in the recognition of people on the move as a priority group. Special protection is guaranteed in scenarios where a group on the move faces additional forms of vulnerability. It also refers to other aspects, such as: protecting both Latin American and Caribbean citizens in countries of transit and migratory destination; prohibiting groups of foreigners from being expelled, because the processes must be singled out; providing immediate information to the consular representative of the respective country when a foreign person is arrested; respecting and guaranteeing non-refoulement; making reparations and compensating the communities affected by xenophobia; and creating an incentive for the migrant population to return its savings and assets.39 To ensure that human mobility is represented institutionally, the Constitution establishes that the state will direct migration policy via a competent body that also coordinates the different levels of governmental action with other states and civil society and evaluates those actions. The Constitution also allowed for the creation of the National Council for Equality in Human Mobility. This entity is in charge of

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ensuring the full validity of the rights of people in mobility made up jointly between people in the state and in civil society, and presided over by the executive branch of government.40 The politico-territorial structure presents changes in response to human mobility, specifically in terms of the magnitude of the Ecuadorian population abroad. The special constituency of the exterior41 (a special group made up of citizens who lived abroad) was thus formed. It appointed six assembly members: two for Europe, Oceania, and Asia; two for Canada and the United States; and two for Latin America, the Caribbean, and Africa. It is important to keep in mind that the Constitution provides that the rights and guarantees established in it, and in international human rights instruments, are directly applicable. They are also justiciable and enforceable before any public, administrative, or judicial servants. In turn, it is therefore not possible to claim a lack of law, so that the recognition of these rights cannot be applied, and that no rule can restrict them. The interpretation must favour the validity of the rights and the principle of being human and the principle of progressivity.42 In addition, the Constitution establishes that “the Political Constitution of Ecuador […] and any rule contrary to this Constitution are repealed. The rest of the legal system will remain in force as long as it is not contrary to the Constitution.”43 Therefore, the previous laws on migration and immigration had to be subject to that provision. However, specific reforms were applied and a codification was carried out in 2004, for the Immigration Act,44 and in 2005, for the Migration Law.45 The transitional provisions established deadlines for elaborating laws according to the new constitutional paradigm, but the rights of human mobility did not appear as priorities. However, it did establish that the legal system necessary for the development of the Constitution should be approved in the first mandate of the National Assembly, which was on 13 May 2013.46 As can be seen, the Constitution establishes significant advances in human mobility. If applied, these would constitute an adequate response to the dynamics of mobility in the country. It also offers adequate mechanisms to guarantee established rights, while adopting an organic law in this area. However, the immigration authorities refused to interpret the previous secondary immigration law under the new Constitution mandates, arguing that they would continue to implement it without regard for constitutional mandates until the secondary immigration law was reformed.

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In addition, a series of difficulties were added to the formulation of the LOMH . The civil organizations that played an important role in incorporating mobility rights in the Constitution tried to encourage other social organizations to participate. At that time, there were several networks and spaces for these organizations to discuss the L O M H , including academia. Gradually, however, the spaces for an effective state-society dialogue were constrained, as well as those of civil associations. By the time the L O M H was approved, there was little participation and minimal advocacy. This development requires a specific reflection, which could be the topic of another chapter, that nuances the tensions between the participation of civil society, state action, and international advice, among other elements, during presidentialist and authoritarian practices. This is because, despite the proposals, the resources invested, and the interest of various sectors of society, the interaction between the State and civil society was not productive, and several law proposals were accumulated without culminating in a consensus proposal. In addition, to this day, the weakness of social relations limits the enforceability of rights.

4 Mig r ato ry R e g u l a r it y and I rregulari ty in E c ua d o r ia n Legi slati on The principles of and rights to human mobility recognized in the Constitution include more protections of human rights standards than those considered in international instruments. They propose a different legal treatment of migration, one in which the state protects and implements a set of rights, which implies a departure from the traditional visions of security, selectivity, and state sovereign power that turn people on the move into objects of control, because they are deprived of their status of subjects of rights. Under this garantist perspective, the understanding of immigration regularity and irregularity disrupts the vision focused on security and selection that is sustained by the discourse of sovereignty. It is worth considering what Jellinek raises in this regard when he argues that “sovereignty is, in its historical origin, a conception of a political nature that has only later been condensed into a legal nature.”47 Therefore, a critical discussion of that political nature is required to counter the control of mobility that affects people’s dignity. The latter must also be understood, as Herrera Flores explains, “to speak of human dignity does not imply making it an ideal or abstract concept. Dignity is a material

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goal. An objective that is specified in equal and generalized access to the goods that makes life ‘worthy’ of being lived.”48 Before the Constitution entered into force, mobility legislation was governed primarily by the Migration Law and the Immigration Law, both passed in 1971 during the military dictatorship. The Migration Law mainly regulated the policing and forms of immigration control, determined the grounds for exclusion and deportation, and included an ambiguous procedure to execute them. Succinctly, the law oversaw the entry to and exit from the national territory. Meanwhile, via a selective approach, the Immigration Law regulated the scope of permanence in Ecuador, as it defined visa categories to which people of other nationalities could benefit. Both laws were directed toward the control and regulation of those entering Ecuador and their emphasis was on national security against populations from other national origins. In addition, the right to request refuge was regulated by executive decrees that were easily amended by introducing limitations to the exercise of this right. The regulation of a right by decree contradicted the principle of legality established by the Constitution. Different studies and reports identified critical areas and limitations to such legislation. They are summarized in the following sub-sections: 4.1 Contradiction with the Principles and Rights Recognized in the Constitution and in International Human Rights Instruments The Migration Law and the Immigration Law were based on the doctrine of national security, sovereignty over rights, and the selectivity of immigrants. This contradicts constitutionally recognized principles and rights, such as the right to migrate, equal rights between nationals and people of other national origin, the progressive end of the status of foreigners, free movement, and universal citizenship, among others. The previous regulations contained several critical points and limitations that had to be overcome by the LOMH. Based on these critical points, both the previous and recently passed legislation will be analyzed comparatively in light of specific constitutional principles and rights. Unfortunately, the L O MH contains multiple provisions that maintain a securitization and sanctioning approach to migration, and undermine the principle of equality and non-discrimination of persons of other national origins. In addition, the doctrine of national security and sovereignty over rights, which was in the previous legislation, is

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also embedded in these provisions, but is hidden under politically correct language and the invocation of constitutional principles and rights of human mobility. Thus, for example, Article 2 of the L O M H develops definitions of constitutional principles, such as universal citizenship, free mobility, the prohibition of criminalization, and equality before the law, and integrates other principles in favour of groups of people on the move. However, the underlying approach in developing provisions on immigration control, granting visas, deportations, recognition of refugee status, and migration sanctions is that of punishment – of migration, national security, and state sovereignty – over human rights. 4.2 Legislation not in Accordance with the New National and World Contexts of Human Mobility As a result of political, economic, social, and cultural changes that took place between the last decade of the twentieth century and the early years of the twenty-first century, human mobility became more frequent in Ecuador, and in the world, thus bringing about new flows of migrants and refugees. Likewise, it is necessary to consider the increase in crimes, such as human trafficking and smuggling, which tends to disproportionately affect people on the move. This scenario demands a human-rights-driven response on behalf of the state. Legislation dating back to 1971 did not respond to these new realities and limited state action to immigration control and the granting of visas. Being largely a request from subjects of rights, as well as those who work for the rights of migrants, the L O M H considers the current dynamics of human mobility. However, regional political situations can also be assumed as the norm. Thus, the L O M H links forms of regularization to the UNA SUR integration process, and even goes so far as to define that “the nationals of the South American countries part of UNASUR 49 are South American citizens in Ecuador.” This definition ends up being imprecise and excludes states that could leave this organization. In fact, this situation is already taking place: Colombia withdrew from UNA SUR in August 2018. 4.3 Absence of Legislation on Human Mobility Dynamics Previous legislation did not have an integral vision of the diverse dynamics of human mobility or the subjects of rights that are part of

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it. Existing legislation had not considered the protection of Ecuadorians abroad and their families in Ecuador, as well as other important aspects, despite the migration exodus between 1999 and 2000 and the large number of migrants residing in Ecuador. Likewise, the right to request refugee status did not have a law nor did crimes related to human mobility, such as human trafficking or the smuggling of migrants. These were only considered from a criminal classification standpoint. Similarly, despite having ratified international conventions on statelessness, Ecuador did not have a specific law on this issue, nor did its legislation include internal migration and internal displacement. The LOMH falls within the realm of international migration. Thus, although it touches on emigration, immigration, international protection, statelessness, and, in a very limited way, human trafficking and the smuggling of migrants, it leaves out internal mobility, specifically displacement, despite these topics being recognized in the Constitution. To exclude these dynamics is to break with the idea of the integrity of human mobility and the need to make internal and international affairs interact. 4.4 Dispersion of Regulations and Institutionality on Human Mobility Another critical point in the previous legislation was the dispersion of human mobility in different normative bodies, and, as a consequence, in different institutions. Thus, for example, the Labour Code included provisions on labour regulations for non-nationals and the travel documents law included provisions on the validity of travel documents. But the nationality law included the rules for acquiring Ecuadorian nationality without coordinating with the laws named above or with the other norms in the naturalization process. As a consequence of the dispersion of laws and regulations, some institutions had overlapping or contradictory powers. Thus, the Ministry of the Interior, the Ministry of Foreign Affairs and Human Mobility, the Ministry of Labour, the National Police, the Migration Policy Advisory Council, and, subsequently, the National Migrant Secretariat – created in 2007 – were responsible for the field of human mobility. These points are what the L OMH sought to overcome. It is important to remember the repeal provision examined above, by which only the rules that do not contradict the Constitution should remain in force. Similarly, it is relevant to bear in mind the direct application of

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constitutional rights and guarantees. Despite this, the provisions of the Immigration Law and the Migration Law, which violated the rights of people on the move, continued to be valid. The LOMH now moved from institutional dispersion to institutional ambiguity. Although Title III of the law, entitled “Institutionality and Penalty Regime,” includes provisions on competent state bodies on the matter, it does not expressly determine which state bodies these are. Rather, it leaves them open for the president of the Republic to do so, thus creating uncertainty and ambiguity. The previous legislation expressly established state organs and their powers. The new law refers to governing institutions that must be determined exclusively by the executive branch, leaving aside even the possibility that subjects of rights could participate in constructing migration policy. The law also establishes general and poorly detailed powers for local governments to assume responsibilities for issues of integrating the population on the move and preventing human trafficking.50 The National Equality Council would be responsible for generating public policy in the area of human mobility, which would aim to overcome the structural inequality experienced by various groups of people on the move. In this regard, the L O M H does not contain any provisions that invoke this entity to establish coordination among the relevant institutions. In summary, the L O MH fails to overcome the critical points that were identified in the previous legislation. Therefore, it does not adapt the regulations on human mobility to constitutional rights and principles or to international human rights instruments. Migration regularity, and its legal treatment, was one of the most critical aspects of the previous legislation, because it was one of the main critical nodes causing violations of the rights of people of other nationalities in Ecuador. The problems identified in the previous ­legislation, and their correlations with the norms of the new law, are observed below.

5 T h e Im p o rta n c e of Regular Im m ig r at io n S tatus One of the main critical areas of immigration regulation is the reduction of the rights of people of other national origins who hold an irregular immigration status, that is, people who have not been able to access one of the immigration categories provided for in the

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Immigration Act. In practice, the actions that allow human rights to be exercised were becoming impossible to attain, or presented major barriers. These included signing and legalizing employment contracts, joining the social security system, opening bank accounts, registering births of Ecuadorian daughters and sons, getting married, and leasing a house, among many others, all of which contributed to migrants being afraid to circulate in public spaces due to possible police immigration control, deprivation of liberty, and consequent deportation. As a consequence of these restrictions on exercising their rights, those with an irregular immigration status had to go unnoticed and were forced to operate clandestinely, which seriously limited their ability to integrate into Ecuadorian society. This situation became more serious in the cases of people who, having fled their country of origin because of armed conflict, violence, or other reasons, particularly people from Colombia, were denied refugee status and could neither apply for another immigration category nor return. It could be argued that such limitations are common in traditional migration policies worldwide. However, under the Ecuadorian constitutional framework, they represent a violation of the principle of equality and non-discrimination on the grounds of immigration status and place of birth. In this sense, immigration status cannot constitute a requirement for the exercise of a human right. The Constitution obliges us to rethink immigration regulations and their exclusionary effects. It also introduces the state’s obligation to ensure the direct enforcement of the rights laid out in the Constitution. Exceptions to the recognition of migrants’ rights must be considered in relation to how they affect human rights. In summary, the regular immigration status in the 1971 immigration legislation was in evident contradiction to Ecuador’s constitutional principles and rights on human mobility and discrimination. On a more contemporary note, the L O M H maintains the division between regularity and irregularity. However, it is concerning that when defining the term “immigration status,” the rule only refers to people with a regular condition, which can be observed as follows: “Immigration status: It is the status of resident or temporary visitor granted by the Ecuadorian State so that foreign people can transit or reside in their territory through a residence permit in the country.”51 Thus, the LOHM’s approach to irregularity status is to ignore it. This stance has serious effects that are contrary to the constitutionally

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recognized principle of equality and non-discrimination based on immigration status. Therefore, formulations, such as “enjoyment of rights regardless of immigration status” (that appear throughout the LOMH), correspond only to people with regular status. It is therefore legal to discriminate against and limit the rights of those who are not regularized. The LOMH also establishes more complex visa categories than those in the previous legislation. However, the differentiated treatment for U N A SU R nationals, in contrast to other foreign nationals, is striking because they are exempted from migratory sanctions and denial of entry, and benefit from a special process of regularization.52 There is no specific agreement on migratory flows between UNASUR member countries. There are also no grounds to create such differential treatment. In fact, this separate treatment establishes new forms of inequality by differentiating the right to migrate for people of other nationalities, including Latin Americans. 5.1 Regular Immigration Status as a State’s Sovereign Act, not as a Right Article 5 of the Immigration Act examined “the decision to grant, deny or revoke a visa to a foreign citizen. However, the Executive Function holds sovereign and discretionary power, in complying with the legal and regulatory requirements, via the competent bodies.” On the basis of a vision of state sovereignty over rights, this mandate authorizes the possibility of arbitrary decision (that is not even discretionary) in cancelling, or granting, the condition of regular status, without even considering its effect on certain rights. In this context, the will and disposition of an authority ordering the cancellation of a visa without due process, or motivation, is enough. This contradicts the right to migrate and the freedom of transit and residence. While the L OMH indicates that the exercise of this right will be regulated in accordance with the law, it is well known that the regulation of rights must be substantiated and cannot be eliminated. In this way, the possibility of migrating, and also the entry to, and exit from, the national territory are assumed as fundamental rights that go hand in hand with the prohibition on criminalizing people because of their immigration status. In the framework of constitutional law, guarantees must be established to prevent arbitrary decisions that violate rights, design procedures

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respectful of due process and legal certainty, as well as establish exceptional, reasonable grounds based on human rights for their regulation. However, the L O M H conceptualizes the granting of visas as an expression of state sovereignty, not of the exercise of rights. In fact, the same formula used by the Immigration Act is maintained, with some changes. The LOMH notes: “State Sovereignty. The Ecuadorian State, through the authority on human mobility, has the power to grant or deny a visa to a foreign person. The Ecuadorian State has the power to cancel or revoke the visa in a motivated manner.”53 Complementing what has already been stated in the Migration Law, the obligation to motivate the cancellation decision is added, but it does not refer to guaranteeing due process. 5.2 Difficulty Accessing a Regular Immigration Status Based on the Principle of Selectivity Articles 9 and 12 of the Immigration Act divided migratory categories into immigrants, who settled in the country, and non-immigrants, who visited Ecuador temporarily. Each of these categories contained types of visas depending on the activities that the person of another national origin would be carrying out in Ecuador. On the basis of the principle of migration selectivity, these categories were intended to permanently regulate people who had enough economic resources. Thus, for example, immigration regularity was guaranteed for investors who could manage companies or who lived from foreign incomes, among others. The exception to this principle was the so-called protection visa. In this case, the spouse or relative within the second degree of consanguinity or affinity of an Ecuadorian citizen, or who possessed an immigrant category visa, could obtain a regular immigration status. Temporary visa categories followed a similar approach. Economic or documentation requirements were easily modified by regulation and they tended to make it difficult to obtain visas, especially for people with few economic resources or for those whose nationalities alarmed the authorities. For its part, the LOMH does not abandon the principle of selectivity. In Article 60, categories similar to those established by the Immigration Law are established in an attempt to regularize those who have economic resources or perform activities that can guarantee financial security. These include rentiers, retirees, investors, workers, and others. Under constitutional principles, the possibility of regularization should

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not be linked to a person’s activity. However, the L O H M sticks to traditional categories. The fact that applicants have to wait two years as temporary residents to access permanent residence further complicates the types of visas and categories. This last aspect is regressive compared with what was established in previous legislation, where it was possible to obtain a visa for an indefinite period without having a temporary one as a prerequisite. The LOMH is also regressive when it emphasizes the principle of immigration regularity and establishes the following as a requirement for obtaining any temporary residence visa, among others: “To accredit the licit livelihoods that allow the subsistence of the applicant and their dependent family nucleus.”54 This has caused people who have family ties, such as children and siblings, among others, to not be able to access a regular immigration status if they are unable to prove they have the necessary financial resources under the established requirements. 5.3 The Impossibility of Rectifying an Irregular Migration Status Another critical point leading to immigration irregularity was the impossibility of correcting this status. This was caused by the provisions laid out by Article 8 of the Immigration Act, which stated: “Any foreigner who requests admission to Ecuador as an immigrant or nonimmigrant, with the exception of passersby, must be issued a visa by an Ecuadorian foreign service official who provides services at the place of residence of the foreigner or, in their absence, at a nearby place.”55 Thus, to access one of the migratory categories, migrants had to already hold a regular immigration status. For those whose residence time in Ecuador had expired, the law did not provide an alternative to solve this condition. Although the will of officials, and the subsequent signing of bilateral agreements, such as MERCOSUR,56 nuanced the application of this provision, it left out people from Cuba, Haiti, Asia, or Africa, who were unable to access one of the visas provided for in the Immigration Act. Although the L OMH does not expressly maintain this provision, it considers irregular immigration status a cause for deportation,57 and sanctions it with two Unified Basic Salaries.58 This means that, although the person can regularize their migratory status, their condition makes them susceptible to the initiation of deportation procedures and, also, of economic burdens that will surely make access to a migratory category impossible.

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5.4 Detention and Deportation as Sanctions against Irregular Immigration Status Finally, immigration irregularity led to detention and deportation. As provided for in Articles 9 and 20 of the Migration Law, those “­without a valid visa” would be exposed to the following situation: “Migration Service police officers who have knowledge of any of the facts constituting the causes of deportation may arrest the accused foreigner. In such a case, the foreigner will be immediately put at the orders of the judge of contraventions of the province in which the arrest was made to initiate the respective action, in which no prison bond will be admitted.” 59 The deportation process provided for in the Migration Law was based on punitive norms, such as the one sanctioning immigration irregularity with detention and, last, with expulsion from the national territory, without assessing the proportionality of the sanctions. In practice, people in these circumstances could remain detained for months at the so-called Hotel Carrión, a detention centre for people with irregular immigration status and pending deportation orders against them. This detention centre was a private hotel controlled by the Ministry of the Interior and heavily guarded by the migration police. It was closed after the enactment of the L O M H in 2017. The deportation process was known for judges’ violations. Unfortunately, inadequate reforms created ambiguities and legal uncertainty.60 For example, it was not clear to whom an appeal should be filed to challenge detention, or to discover how to escape detention. Unfortunately, the process allowed the Minister of the Interior to review judicial decisions when deportation was denied. Despite the obvious contradiction in the principles of judicial independence and separation between branches, this “power” was used in the case of the mass expulsion of 150 Cubans in July 2016. The LOMH also sanctions irregular immigration status with deportation and fines. This law creates a double punishment for those in this condition. In addition, the procedure designed for deportation seriously obstructs due process. The supervisory authority is a judge and jury, because it is responsible for determining whether the person should be deported. A regressive norm is thus established because, previously, a judicial authority was in charge of this procedure, and now it becomes an administrative process dependent on a single authority. However, the deportation procedure does offer mechanisms to challenge the decision either administratively or judicially.

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In the case of detentions, the law expressly establishes that, to execute deportation, “other measures that guarantee the appearance of the processed person during the deportation procedure must be taken, provided that these do not imply a deprivation or restriction of the right to personal liberty.”61 However, it is not clear what these other options would be or how the transfers of people would take place. In sum, despite invoking the constitutional principles and rights on human mobility and international human rights instruments, the LOMH maintains the restrictive views from the previous legislation that had initially been intended to be overcome by the new regulations. Consequently, regularity and irregularity are treated under these same parameters. This occurs even with regressive aspects that further aggravate and limit people’s exercise of the right to migrate in any condition. From a human rights perspective, too, the law fails to respond to the country’s context of human mobility, where irregular migration status is central and requires adequate solutions. Along with its structural limits, the LOHM’s weak social legitimacy is also important to consider. This is expressed not only in relation to the demands of unconstitutionality, but also to several reform initiatives that would change migration regulations. All this occurs in a context of complex mobility dynamics and the government’s continued emphasis on security and selectivity for people on the move. Moreover, this ignores the constitutional mandate that provides that the lack of law is not an argument for not complying with rights.

6 C h a l l e n g e s f o r Mi grants’ H u m a n R ig h t s E ndeavours Latin America is facing new challenges in the human rights of people on the move. The Venezuelan crisis has had the proportions of a humanitarian crisis for the vast majority of its population, and has put into public discussion the need for timely and effective international protection of those in situations of forced movement. The Venezuelan exodus is an unprecedented migratory situation in the region because of its magnitude, complexity, and effects in the continent. The United Nations (U N ) stated that, by the end of 2018, more than 3 million people would have left Venezuela, with 2 million more in 2019. For this reason, in 2019 the UN implemented the Regional Response Plan for Refugees and Migrants (R M R P ) for sixteen South American countries, and budgeted $738  million.

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By 2022, the program will include seventeen countries and foresees spending $1,790 billion.62 Many issues converge in this complex situation: the cumulative violation of rights in Venezuela and new oppressions and rights violations, as migrants move through difficulties across countries, among others, as a result of the many precarious conditions migrants face to have their lives acknowledged in new destinations of transit and residence. This scenario assumes recognizing that forced migration is part of the crisis, as well as a response to it to guarantee life, rather than a consequence. The repercussions on the continent are presented in different orders: international protection and the construction of a regional solution that should be promoted by different states; the resources that this strategy implies; and the efforts to be deployed to give an adequate response to fulfilling rights. Several studies and reports emphasize the seriousness of the Venezuelan crisis and the critical situation of those who leave the country, as well as the limitations they must face. Related work has also highlighted how states have persistently understood and treated migration (even forced migration) as a security issue for which they have the sovereign power to decide what to do and what not to do. The result of this approach is that it postpones the responsibility of all states to protect the rights of every human person.63 Ecuador and Venezuela have historical and human mobility ties that unite them. Fuelled by the Venezuelan economic bonanza, since the 1960s many Ecuadorians have migrated and established their residence there.64 Currently, many of them constitute part of the exodus. Similarly, Venezuelan people also came to Ecuador, but in smaller numbers. Former president Rafael Correa strengthened political ties between the two states and, in 2010, the Migration Statute was signed between the Republic of Ecuador and the Bolivarian Republic of Venezuela, which created a favourable framework for migration, especially for professionals in the labour market. Table 5.3 indicates that the migratory balances of the Venezuelan population in Ecuador took a radical turn in 2014, the year it increased by six times. There is then an accelerated rise and, in 2018, the largest movement to date is recorded: in one year, the number of entries to the country tripled and the balance exceeded twice that of the previous year. Xenophobic reactions soon followed and restrictive migration policies were implemented and entered into force after an initial governmental silence. On 18 August 2018, a passport requirement for the Venezuelan population was implemented, invoking security issues,

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Table 5.3 Migratory balances of Venezuelan nationals in Ecuador, 2015–17

INEC yearbooks international entries and exits Year 2013 2014 2015 2016 2017 2018*

Entry

Exit

101,643 101,142 119,763 116,651 105,533 95,883 102,619 79,008 287,972 226,829

Balance

Ministry of Interior migratory flows 2015–18 Entry

Exit

Balance

501 3,112 9,650 95,909 88,378 7,531 23,611 102,369 78,696 23,673 61,143 288,005 226,867 61,138 845,362 703,195 142,167

Variation of balances

2,119 -62 5

*Cutoff: 19 November 2018. Source: Created by the authors based on data from https://www.ecuadorencifras.gob.ec/ entradas-y-salidas-internacionales.

an unreasonable request during a humanitarian crisis. A couple of days later, on 24 August, cautionary measures were accepted against that requirement and the preparation of a safety plan for the Venezuelan population on the move was arranged. A meeting was held in  September with the participation of the governments of Argentina, Brazil, Chile, Colombia, Costa Rica, Mexico, Panama, Paraguay, Peru, and Ecuador, which resulted in the signing of the Quito Declaration on Human Mobility of Venezuelan Citizens in the Region, whose purpose was to create a regional solution. However, Venezuelans in transit through Ecuador, who are the majority, and those who settle in the country, are in the margins because refugee status is still not accepted and there are no specific mechanisms to regularize it. Indeed, the LOMH heightens irregularity by fining migrants two Unified Basic Salaries (approximately $700), a sum that should not be applied in the context of a humanitarian crisis. Moreover, in January 2019, a viral video showing a young Venezuelan stabbing his partner – a pregnant woman – unleashed a wave of xenophobic attacks against Venezuelan citizens.65 President Lenin Moreno echoed these xenophobic sentiments in his statements in the press and social networks. As a result, as of 25 January 2019, a new requirement to enter the country was introduced – the possession of certified judicial records.66 In practice, this requirement may make it impossible for Venezuelan citizens to enter Ecuador since it is currently extremely difficult to obtain administrative documentation in Venezuela.67

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In December 2018, Ecuador signed the U N Global Compact for Safe, Orderly and Regular Migration. Through its twenty-three objectives, this UN initiative aims to give a better response to the issue of irregular migration. On another note, there is an increasing number of regressive statements regarding mobility rights, despite the fact that migratory flows do not stop (such as the case of the Central American “walkers”). In addition to addressing the current humanitarian ­situation, it is important to keep in mind that human mobility is configuring social relations, both on a local and global scale. Therefore, it is not a passing issue, but one that is created by our current logics of coexistence and the exercise of human rights.

7 C o n c l u s i ons Current human mobility highlights the multiple national and global dimensions that have an impact on humanity’s natural practice of moving from one place to another. These repercussions reveal the complexity of both the increasing occurrence of forced migrations and the difficulties of regularizing one’s immigration status when arriving in another country, making the protection of human mobility even more urgent. To make it easier to regularize international mobility, legal and public policy mechanisms should go hand in hand with the effective protection of people on the move. Ecuador has been effecting these transformations and challenges to fully validate the human rights of people on the move. In addition, there is an obvious discrepancy between the current Constitution of Ecuador, which comprised an important effort to guarantee the specificity of the rights of people in mobility, and the persistence of the authorities to keep the main previous secondary legislation alive. Moreover, the LOMH fails to respond to both the context of mobility and the constitutional mandate. Rather, politicians use the topic of human mobility to their own benefit, while, at the same time, these actors are obliged to comply with the human rights of people on the move. As long as both the regularity and irregularity of human mobility is not dealt with, in a way that is consistent with human rights and existing realities, the debt with people in mobility will remain. The L O M H should thus guarantee the regularization of non-nationals entering Ecuador, since it is the first condition for fulfilling the right

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to migrate, promoting universal citizenship, and gradually eradicating foreigner status. Finally, the challenges posed by “the walkers” make us rethink existing mechanisms for the protection of rights, particularly in contexts of growing violence and a limited understanding of the rights of humans on the move.

A p p e n d ix Table 5.4 Migratory balances of Ecuadorian population, 1997–2017 Year

Exits

Entries

Balance

1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

320,623 274,995 385,655 519,974 562,067 626,611 613,106 603,319 663,601 733,459 800,869 817,981 813,637 898,885 1,022,451 1,022,205 1,137,875 1,278,336 1,398,167 1,550,898 1,547,312

289,692 234,260 294,547 344,052 423,737 461,396 485,971 528,912 597,038 674,267 757,892 767,469 820,292 893,408 1,027,543 1,025,310 1,143,116 1,269,675 1,374,893 1,493,768 1,506,290

+30,931 +40,735 +91,108 +175,922 +138,330 +165,215 +127,135 +74,407 +66,563 +59,192 +42,977 +50,512 -6,655 +5,477 -5,092 -3,105 -5,241 +8,661 +23,274 +57,130 +41,022

Source: Created by the authors based on data from https://www. ecuadorencifras.gob.ec/entradas-y-salidas-internacionales.

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Table 5.5 Main destination countries of Ecuadorian emigrants, 2017 Country United States Peru Colombia Spain Panama Mexico Chile Argentina Italy Brazil Venezuela Canada Cuba Dominican Republic United Kingdom Germany Bolivia France Costa Rica Holland (Netherlands) Others Total

Total number of migrants

Percentage

601,908 296,511 166,584 144,992 64,679 40,435 34,023 29,251 23,315 17,698 13,002 12,343 10,801 9,919 8,334 8,051 4,746 4,472 4,238 4,100 47,910 1,547,312

38.9 19.16 10.77 9.37 4.18 2.61 2.2 1.89 1.51 1.14 0.84 0.8 0.7 0.64 0.54 0.52 0.31 0.29 0.27 0.26 3.1 100

Source: Created by the authors based on data from https://www.ecuadorencifras. gob.ec/entradas-y-salidas-internacionales.

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Table 5.6 Migratory balances of non-nationals, 1997–2017 Year

Entries

Exits

Balance

1997 1998 1999 2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017

529,492 471,009 517,670 627,090 640,561 682,962 760,776 818,927 859,888 840,555 937,487 989,766 968,499 1,047,098 1,141,037 1,271,901 1,364,057 1,556,991 1,544,463 1,418,159 1,608,473

402,110 349,363 408,646 444,926 464,781 487,546 519,801 642,378 703,555 779,385 898,012 949,116 928,974 1,005,422 1,086,116 1,217,803 1,309,635 1,481,485 1,464,277 1,378,951 1,518,100

127,382 121,646 109,024 182,164 175,780 195,416 240,975 176,549 156,333 61,170 39,475 40,650 39,525 41,676 54,921 54,098 54,422 75,506 80,186 39,208 90,373

Source: Created by the authors based on data from https://www. ecuadorencifras.gob.ec/entradas-y-salidas-internacionales.

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Table 5.7 Main nationalities of non-nationals, 2017 Entries Number 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21

Nationality Colombia Venezuela United States Peru Spain Argentina Chile Germany China Canada Mexico United Kingdom France Cuba Brazil Philippines Panama Italy Holland (Netherlands) India Others Total

Number

Exits

Percentage

Number

Percentage

330,671 287,972 244,600 139,116 58,727 44,662 44,522 33,439 30,147 28,342 27,541 25,623 25,394 24,920 21,914 19,077 18,108 17,361

20.56 17.9 15.21 8.65 3.65 2.78 2.77 2.08 1.87 1.76 1.71 1.59 1.58 1.55 1.36 1.19 1.13 1.08

314,650 226,829 244,070 135,266 59,982 44,072 44,214 33,148 29,519 28,077 27,318 25,397 25,053 24,713 21,969 18,749 18,153 17,293

20.73 14.94 16.08 8.91 3.95 2.9 2.91 2.18 1.94 1.85 1.8 1.67 1.65 1.63 1.45 1.24 1.2 1.14

16,033 13,501 156,803 1,608,473

1 0.84 9.75 100

15,894 10,489 153,245 1,518,100

1.05 0.69 10.09 100

Source: Prepared by the authors based on data from https://www.ecuadorencifras.gob.ec/ entradas-y-salidas-internacionales.

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No t e s   1 The bill was presented at the National Assembly on 16 July 2016.   2 Ecuador, National Assembly of Ecuador, Organic Law on Human Mobility (LOMH), Supplement of Official Register No. 938, 6 February 2017.   3 UNH C R , “U N HCR welcomes the new Human Mobility Law of Ecuador,” 13 January 2017, http://www.unhcr-ghana.org/unhcr-welcomes-ecuadorsnew-human-mobility-law.   4 This reaction is surprising because the LO MH contains several provisions that are restrictive and limit the international protection that must be guaranteed to refugees. For example, Art. 103 provides for deportation in cases of inadmissibility as a refugee, and Art. 104.4 includes the consideration of threat or risk to internal security as a criterion for recognizing the condition of refuge.   5 O A S , “I A C HR Hails Human Mobility Law in Ecuador,” press release, 1 March 2017, https://www.oas.org/en/iachr/media_center/ PReleases/2017/022.asp.   6 “Demandan Ley de Movilidad Humana,” La Hora, 7 March 2017, goo.gl/yNHKR8.   7 Ecuador, Constitution of the Republic of Ecuador, Official Register No. 449, 20 October 2008.   8 The damages totalled US$2,869.3 million (48 per cent of the country’s 1997 GD P), of which 53 per cent was in the productive sector, especially on the coast, 29 per cent in infrastructure, and 7 per cent in social sectors, especially those with lower incomes and those who are at risk; C EPA L, Efectos macroeconómicos del fenómeno El Niño de 1997–1998. Su impacto en las economía andinas, LC/ M EX/ R668, (Mexico City: C EPA L, 1999), goo.gl/sux5Ln.   9 Abdullah Bucaram (6 February 1997) and Jamil Mahuad (21 January 2000). Five years later, when the country showed significant signs of recovery, then president of the Republic, Lucio Gutiérrez, was also removed (20 April 2005). In the three removals, there was: popular discontent, breakdown of the legal order, discussion about presidential legitimacy, and the intervention of the armed forces. 10 The following events stand out: in November 1998, the creation of the Deposit Insurance Agency was approved to guarantee the deposits of ­clients of closed financial entities, which encompassed more than thirty agencies; then, in March 1999, the Superintendent of Banks decreed a “Bank Holiday” (suspension of any banking operation) for a period of twenty-four hours, which was extended for five more days; at the same

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time, then president of the Republic, Jamil Mahuad, decreed the freezing of bank deposits. 11 In January 2000, the president formalized the dollarization of the country’s currency, setting the exchange rate to 25,000 sucres per US dollar. 12 Only 36 per cent of all dollars delivered by the Deposit Insurance Agency covered the savings of clients; Pedro Páez Pérez, “Financial liberalization, crisis and destruction of the national currency in Ecuador,” Cuestiones Económicas 20, no. 1: 3 (2004): 6. According to Acosta, “between 1995 and 2000, the number of poor people increased from 3.9 to 9.1 million, in percentage, from 34% to 71%; extreme poverty doubled its number from 2.1 to 4.5 million, the leap was from 12% to 31% […] while in 1990 the poorest 20% received 4.6% of income, in 2000 captured less than 2.5%; Meanwhile, the richest 20% increased their participation from 52% to more than 61%”; Alberto Acosta, “Ecuador: ¿un modelo para América Latina?,” Boletín ICCI-RIMAI , no. 34 (2002), goo.gl/H2DBrQ. 13 Ecuador, Political Constitution of the Republic of Ecuador, Official Register No. 1, 11 August 1998. 14 Acosta, “Ecuador: ¿un modelo para América Latina?” 15 Alberto Acosta, El aporte de las remesas para la economía ecuatoriana, Expert Group Meeting on International Migration and Development in Latin America and the Caribbean (Mexico City: United Nations Secretariat, 2005). 16 Rocío Nasimba Loachamín, “La política de inmigración en el Gobierno de Rafael Correa: avances, límites y retos, “Masters Thesis in Human Rights and Democracy in Latin America, Public Policies (Universidad Andina Simón Bolívar, Sede Ecuador, 2010), 32. 17 Rafael Correa Delgado, “Encuentro con la comunidad ecuatoriana en Milán,” speech, Milan, 27 January 2017, goo.gl/Lyg2XV. 18 Plan Colombia was a political and military agreement that took place in 1999 between the governments of the United States of America and Colombia, which aimed to confront irregular armed groups and drug trafficking. 19 Ministerio de Relaciones Exteriores y Movilidad Humana, “Sobre refugio, datos actualizados,” https://www.cancilleria.gob.ec/2020/06/18/sobrerefugio-datos-actualizados. 20 Ibid. 21 Selee et al., Creativity amid Crisis: Legal Pathways for Venezuelan Migrants in Latin America (Washington, DC: Migration Policy Institute, 2019), 2. 22 UNH C R , “Asylum-seekers from Venezuela 2014–18,” UNHC R , accessed 27 September 2020, https://data2.unhcr.org/en/situations/vensit. 23 Took place on 26 September and 24 November 2016.

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24 Ecuador, Organic Law on Human Mobility, 31 January 2017. 25 Diego Acosta, Cécile Blouin, and Luisa F. Freier, La emigración Venezolana: respuestas latinoamericanas (Madrid: Fundación Carolina, 2019). 26 Ecuador, Ministerial Accord No. 244, 22 August 2018. 27 Ecuador, Resolución de medidas cautelares, 28 August 2018; “Ecuador suspende requisito de pasaporte a venezolanos por 45 días,” DW , 24 August 2018, https://www.dw.com/es/ecuador-suspende-requisito-depasaporte-a-venezolanos-por-45-d%C3%ADas/a-45218326. 28 Ecuador, Inter-ministerial Accord No. 0001, 21 January 2019; Acosta, Blouin, and Freier, La emigración venezolana. 29 Jaime Cevallos, “28.750 ecuatorianos dejaron España en 2013 para retornar al país, según estadísticas,”El Universo, 1 July 2014, goo.gl/1XHwwY. 30 I NE C , “Anuarios entradas y salidas internacional,” INEC , accessed 27 September 2020, http://www.ecuadorencifras.gob.ec/migracion. 31 For more statistical information, see Annex 1. 32 Ibid. 33 One of the relevant experiences was the action of the Coalition for Migration and Refuge, https://movilidadhumana.wordpress.com/about. 34 Constitution of the Republic of Ecuador, Art. 416 No. 5, 6, 7, and 11; Art. 423 No. 5. 35 See the Constitution of the Republic of Ecuador, Title V III about international relations. It includes three chapters: principles, treaties, and Latin American integration. 36 See 1998 Constitution, Arts. 84 Nos. 8 and 258. 37 See Constitution Arts. 40–41, 66 Nos. 14 and 338. 38 See Constitution Arts. 1, 9, 11 Nos. 2, 61 final paragraph, 63, 152 No. 2, 153, 303, 404, 416 No. 5, and others on elections and placement of government officials. 39 See Constitution Arts, 35, 41, 57 No. 3, 66 No. 14, 77 No. 5, 423 Nos. 3 and 5. 40 See Constitution, Arts. 156, 157, 261 No. 3, and 392. 41 Known as the “fifth region,” it alludes to the four regions that traditionally make up Ecuadorian territory: Coast, Sierra, Amazonia, and Insular. 42 See Constitution, Arts. 11 Nos. 3, 4, and 5, 417, 426, 427, and 428. 43 See, Constitution, Derogation. 44 Ecuador, Immigration Law, Codification 23, Official Register No. 454, 4 November 2004. 45 Ecuador, Migration Law, Codification 6, Official Register No. 563, 12 April 2005. 46 See Constitution, First Transitory Provision.

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47 Georg Jellinek, Teoría General del Estado (México C DM: Fondo de Cultura Económica, 2012), 401. 48 Joaquín Herrera Flores, La reinvención de los Derechos Humanos (Andalucía: Atrapasueños, 2007), 26. 49 L O MH , Art. 83. 50 L O MH , Art. 165. 51 L O MH , Art. 3 No. 1. 52 L O MH , Arts. 83–9. 53 L O H M, Art. 67. 54 L O H M, Art. 61. 55 Ecuador, “Immigration Act,” Art. 8. 56 This agreement made the requirement more flexible for the nationalities included in M ERCOS U R. 57 L O H M, Art. 143. 58 L O H M, Art. 170 No. 2. 59 Immigration Act, Art. 20. 60 For example, the reforms introduced in the Organic Code of the Judicial Function provided that it is the contravention judges who have access to deportation proceedings, rather than the General Police Mayors. Ecuador, “Organic Code of the Judicial Function,” Art. 11 No. 18, Supplement of Official Register No. 544, 9 March 2009. 61 L O H M, Art. 145 No. 2. 62 UN, “UN Agencies Launch Emergency Plan for Millions of Venezuelan Refugees and Migrants,” UN News, 14 December 2018, https://www. acnur.org/noticias/press/2021/12/61b113b64/socios-requieren-1790millones-de-dolares-para-apoyar-a-las-personas-refugiadas.html. 63 C I D H , Institucionalidad democrática, Estado de derechos y derechos humanos en Venezuela. INFORME DE PAÍS (Washington, DC : C IDH, 2017), http://www.oas.org/es/cidh/informes/pdfs/venezuela2018-es.pdf; Yovanny Bermúdez et al., Informe sobre la movilidad humana venezolana. Realidades y perspectivas de quienes emigrant (9 de abril al 6 de mayo de 2018) (Cúcuta: Migración Colombia and Servicio Jesuita a Refugiados, 2018); O H CHR, Human Rights Violations in the Bolivarian Republic of Venezuela: A Downward Spiral with No End in Sight (Geneva: OHC HR , 2018), https://www.ohchr.org/Documents/Countries/VE/Venezuela Report2018_EN.pdf; U N CAT, Concluding observations on the combined third and fourth periodic reports of the Bolivarian Republic of Venezuela, C A T /C /V EN / CO/ 3-4 (Geneva: U N , 2014), http://acnudh.org/wp-content/ uploads/2015/01/CAT-Venezuela.pdf; OAS, Report of the General Secretariat of the Organization of American States and the Panel of

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Independent International Experts on the Possible Commission of Crimes Against Humanity in Venezuela (Washington, DC : OA S, 2018), https:// reliefweb.int/sites/reliefweb.int/files/resources/Informe-Panel-IndependienteVenezuela-EN.pdf.   Paola Moreno Nuñez, La crisis Venezolana y su impacto en los países de la region latinaomericana (Quito: CEP, 2018). 64 Gioconda Herrera, María C. Carrillo, and Alicia Torres, eds., La migración ecuatoriana: transnacionalismo, redes e identidades (Quito: F L A C S O Ecuador, 2005). 65 El Comercio, “Ecuador: Atacan y expulsan a venezolanos de Ibarra por caso de feminicidio,” El Comercio, 22 January 2019. 66 Ecuador, Official Register No. 414, 25 January 2019. 67 Acosta, Blouin, and Freier, La emigración venezolana.

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6 Mexican Immigration Legislation and Policy F e l i p e S á n c h ez N á jer a 1 O r ig in a n d E vo l u t i on of Mexi co’s M ig r at io n P o l icy and Legi slati on To study the historical evolution of Mexican migration policy, we examine four main periods: 1) ambivalent immigration policies; 2) immigration as a demographic issue and political asylum; 3) inclusion of international migration law; and 4) the autonomy of migration measures. 1.1 Ambivalent Immigration Policies Mexican migration legislation and policy from the mid-nineteenth century until the early twentieth century reflect an ambiguous perspective on migration. This period was characterized by the existence of a large number of regulatory provisions with very short validity. Moreover, each norm developed a political orientation that, in many cases, openly contrasted with the previous one. The laws either rejected or promoted mostly European migratory flows and took place within a context of European colonization Following Jiménez and Espinosa de los Monteros,1 we can identify four stages within this period. The first, between 1821 and 1852, corresponds to colonization and the rejection of Spanish monarchy. During this period, the General Colonization Law of 1823 was enacted, which encouraged the arrival of foreigners with economic resources.2 However, suspicions of a possible recolonization triggered restrictive policies. The result was the enactment of three expulsion

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laws in 1827, 1829 and 1832.3 In addition, in the 1836 Constitution, foreigners’ access to rights of residence and property depended on them becoming naturalized citizens or marrying a Mexican national.4 Also, at this stage, the first foreign diplomatic missions and consulates were established in Mexico.5 The rigidity of the immigration policy in this period began to be reversed in 1846 with the issuance of a decree to aid the naturalization of foreigners so they could join the Mexican military to defend against a possible US invasion.6 The second stage is the settlement stage, between 1853 and 1876. This stage was characterized by the development of migration policies to establish Mexico as an attractive territory for European immigrants. The whole purpose of European immigration was to colonize northern Mexico through settlements and military colonies to displace Indigenous peoples.7 Along this line, the Decree on European Colonization of 1853 was issued to promote the immigration of Catholic Europeans. This decree also provided immediate nationality to all migrants entering Mexican territory. A new historical moment starts in 1876, the third stage: the stage of foreign investment, in which migration policy was characterized by prioritizing capital investment and foreign trade. This policy derived from the Immigration and Naturalization Law of 1886, which systematically incorporated a set of rights and obligations and facilitated the process of naturalizing foreigners. However, this policy did not have the results expected because the regulatory frameworks for proper migration management were not sufficient. In addition, after the plague at the beginning of the nineteenth century, public health policies were adopted. Thus, the Immigration Act of 1908 sought to reduce migration flows to avoid public health crises related to international mobility.8 The triumph of the Mexican Revolution established a new stage, the fourth in this period: the rejection of immigration. Since Mexico’s independence process until the early twentieth century, foreigners, particularly Europeans, had maintained a privileged position in politics and the economy. Following the revolution, a movement toward the reconstruction of national identity and the rejection of foreigners was expressed in the Constitution of 1917.9 In fact, the 1917 Constitution granted broad discretionary power to civil and administrative authorities in the entry and free movement of foreigners (Article 11), while also granting the executive branch the power to expel foreigners without trial (Article 33). The Migration Act of 1926 contained a very

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rigid immigration selection policy and rejected immigration that posed “a threat of physical degeneration for our race, moral depression of our people, or dissolution of our political institutions.”10 In 1930, a new and similar Migration Law was enacted. 1.2 Immigration as a Demographic Issue and Political Asylum The second period, between the 1930s and the 1990s, is characterized by the inclusion of migration policy in demographic projects and the inclusion of political asylum in the legal system as a result of the arrival of people escaping European and Latin American dictatorships. The Population Act of 1936 incorporated immigration into a broader policy and in relation to demographic dynamics. Matters related to migration, demography, tourism, and personal identification were regulated for the first time and in the same state apparatus. On the one hand, this law introduced a new orientation that promoted immigration as a state policy to address low population levels and high mortality.11 On the other hand, from a strictly migration policy point of view, the law established the migration categories of tourist, transmigrant, local visitor, visitor, and immigrant.12 The arrival of Spaniards fleeing the Spanish Civil War and the Franco dictatorship pushed the use of political asylum forward since these immigrants were understood “as people who came to stay, who could be easily integrated, and who would contribute to the development of Mexico.”13 Between 1939 and 1950, it is estimated that more than 20,000 Spanish citizens were granted political asylum.14 The 1947 Population Law was enacted next. Although it continued to support the promotion of immigration to solve demographic problems, this law included several relevant migratory aspects, for example attempting to enter Mexican territory after an expulsion or deportation order was criminalized, as well as staying in Mexican territory after an expulsion order.15 Additionally, migratory stations16 were created.17 From a human rights perspective, Mexico signed the International Convention on the Elimination of All Forms of Racial Discrimination in 1966.18 Subsequently, the General Population Law of 1974 regulated, more systematically, issues such as internment, stays, and exits. In 1977, the General Directorate of Migratory Services was created.19 In the early 1980s, thousands of people fleeing the violent civil war in Guatemala entered Mexican territory. The Mexican government

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paid close attention to the so-called Central American exodus. It created the Mexican Commission for Refugee Assistance20 in 1980 with the support of the United Nations High Commissioner for Refugees and organizations such as the Jesuit Refugee Service. In addition, in this period, Mexico subscribed to three international conventions: the  International Covenant on Civil and Political Rights;21 the International Covenant on Social, Economic, and Cultural Rights;22 and the Convention on the Elimination of All Forms of Discrimination against Women.23 Examining these two periods – between the mid-nineteenth century and early twentieth century and between the 1930s and 1990s – allows us to argue that Mexican immigration policy has been shaped mostly as a reaction to critical situations wherein migration is seen as adding to them. Thus, it is not surprising that migration policies have been the result of historical events experienced by the country and strongly influenced by the political, economic, and social dynamics of each era. 1.3 Inclusion of International Migration Law Since 1990, a true transformation in Mexican immigration policy has taken place. The period from 1990 to 2011 prompted the approval of the laws then in force and was characterized by international mechanisms of protection of migrant rights being incorporated into the Mexican legal system.24 While in previous decades Mexico had adhered to several international treaties, starting in the 1990s treaties directly related to the protection of the rights of migrants were signed. In 1990, the Convention on the Rights of Children was signed,25 an international treaty that had an important impact on the obligations of the Mexican state to migrant children. In 1990, the Convention on the Protection of the Rights of All Migrant Workers and Members of their Families was also signed.26 To protect refugees and persecuted people, the General Population Law (Article 42, section V I ) was amended in 1990 to include the expanded definition of the concept of refugee included in the Cartagena Declaration on Refugees of 1984 (the Cartagena Declaration). In that law, the countries of the Americas expanded the scope of protection offered by the 1951 Refugee Convention. The incorporation of this provision meant that Mexican legislation and policies would include, at least rhetorically, the rights of migrants and people who required international protection within the Mexican legal system.27

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In 2000, Mexico ratified the 1951 Refugee Statute Convention and its 1967 Protocol. However, this Convention did not have mechanisms for its application until a decade later – a time frame that corresponds to the next period in the development of migration policy. Meanwhile, the protection of refugees continued to be subsumed within population matters. It was only in 2011 when these mechanisms had their own regulation. In 2008, the General Population Law of 1974 was amended to repeal Articles 7 to 75 (except Article 10) to decriminalize irregular entry into national territory. Since then, a foreigner’s lack of documentation while in Mexico constitutes only an administrative offence. 1.4 The Autonomy of Migration Measures A new stage in Mexican immigration policy began during the early 2000s, based on several legislative reforms. The laws of 2011 separated immigration matters from demographic ones; the autonomy of the former thus characterizes this period. In this context, three important events informed the consolidation of the three autonomous regimes on immigration matters. First, the Refugee and Complementary Protection Act of 2011 was put in effect – currently the Law on Refugees, Complementary Protection and Political Asylum.28 The law had a great effect on the Mexican legal system. Among its substantial contributions to international protection are the inclusion of the universal definition of refugee and the expanded definition of the Cartagena Declaration, the power to grant complementary protection, and the inclusion of gender as a cause for persecution, among many others.29 The second important event was the enactment of the Migration Law on 25 May 2011. Since then, immigration matters have been separated from the General Population Law. Previously, migration matters had been considered an internal policy issue, leaving migrants with few mechanisms to protect their human rights. The third event was the modification, in 2011, of various constitutional articles in the framework of the Constitutional Reform of Human Rights. This reform included modifications to article 11, which was revised as follows: Everyone has the right to enter the Republic, leave it, travel through its territory, and change residence, without the need

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of a security letter, passport, letter of safe-conduct or other similar requirements. The exercise of this right will be subordinated to the powers of the judicial authority, in cases of criminal or civil responsibility, and to those of the administrative authority, as regards the limitations imposed by the laws on emigration, immigration, and general health of the Republic, or about pernicious foreigners residing in the country. In case of persecution for political reasons, all persons have the right to request asylum; for humanitarian reasons, refuge will be granted. The law will regulate its origins and exceptions.30 This represented the first time that the right to request asylum had been included in the constitutional text, a major legal advance. Yet, the wording was incorrect since it was ambiguous and its terminology was wrong. The term “refuge” is a technically incorrect expression that originated in a mistranslation of English. Fortunately, the text was amended on 15 August 2016 to clearly distinguish between ­diplomatic asylum and asylum.31 The constitutional precept was written in the following way: Everyone has the right to seek and receive asylum. The recognition of refugee status and the granting of political asylum shall be carried out in accordance with international treaties. The law will regulate its origins and exceptions.32 It is from this period onwards that we can state the existence of three autonomous regimes for regulating migration: international protection, regular migration, and irregular migration regimes.

2 R e g u l at io n s o n M e x i can Nati onali ty As mentioned above, Mexican immigration policy and legislation were long considered complementary to population matters. This orientation also influenced the mechanisms of access to Mexican nationality. It is worth describing, briefly, the interaction between the current regulation of nationality (either naturalization mechanisms, or jus sanguinis and jus soli) and migrants in Mexico. In this section, I explain the following processes: 1) obtaining Mexican nationality through jus soli and jus sanguinis, 2) assisting with naturalization and naturalization, and 3) regulating dual nationality.

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2.1 Obtaining Mexican Nationality The current processes to obtain Mexican nationality are based on Articles 30, 32, and 27 of the Political Constitution of the United Mexican States (Constitution) as well as on the Nationality Law of 1998. According to article 30 of the Constitution, Mexican nationality can be granted by birth or naturalization. Based on section A of Article 37 of the Constitution, the current norm establishes that the mechanisms of jus soli and jus sanguinis determine nationality by birth. Jus soli (birthright citizenship) is granted regardless of the parents’ nationalities, so a person born in Mexican territory obtains Mexican nationality automatically. As stated in Article 37 of the Constitution, any children of migrant parents born in national ­territory immediately obtain Mexican nationality regardless of the regularity or irregularity of their parents’ immigration status. In contrast, jus sanguinis does not grant citizenship to any children of Mexican parents. On the contrary, the person must meet the ­following three cumulative requirements: 1 be born in non-Mexican territory[;] 2 be a child of Mexican parents, of a Mexican father only, or of a Mexican mother only[;] and, 3 one of the parents born in national territory, that is, they obtained their nationality through jus soli. It is of critical importance to analyze, in detail, the granting of nationality through jus sanguinis. In its current language, this mechanism could lead to statelessness since it would exclude from nationality thirdgeneration individuals born outside national territory, that is, children of Mexicans who themselves obtained Mexican nationality through jus sanguinis. In other words, the regulation establishes a third-generation limit for accessing nationality where the children of Mexican parents who are born abroad would be unable to obtain Mexican nationality. This is because although they meet the first requirement, (being born in non-Mexican territory), as well as the second (being the children of a Mexican parent), they do not meet the third requirement since their parents were not born in Mexican territory and, therefore, are unable to pass their nationality on to their children. The opposite takes place in the case of obtaining nationality for naturalized Mexican people. In this case, jus sanguinis operates for any

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case without any limitation. In fact, a child of Mexican parents who are Mexican by naturalization would automatically obtain Mexican nationality without any generational restriction. 2.2 Naturalization and Naturalization Assistance Another process to gain Mexican nationality is via naturalization. As a general rule, any foreign person who wishes to obtain Mexican nationality must follow these requirements, in accordance with the Nationality Law (Articles 17 and 19): i Apply to the Secretariat expressing their willingness to obtain Mexican nationality; ii Renounce to what is listed in article 1733 of the Nationality Law; iii Prove that the applicant speaks Spanish, knows the history of the country, and participates in national culture; iv Prove that the applicant has resided in national territory for a period of five years. With these general requirements, the only naturalization assistance is mentioned in Articles 20 and 15 of the Nationality Law. The first one exempts Latin Americans and Spaniards from the five-year residence requirement and establishes a two-year period of residence for these groups to be able to access naturalization. In addition, Article 15 of the Nationality Law establishes the following: Article 15. Any foreigner who intends to naturalize as a Mexican citizen must prove that they can speak Spanish, that they know the history of the country, and that they are integrated into the national culture, for which they must present and pass the exams in accordance with the contents approved by the Matías Romero Institute of the Secretariat. In the case of a foreigner whom the Ministry of the Interior considers to be a refugee, as well as in the case of minors and persons over sixty years of age, it will be sufficient to prove that they speak Spanish.34 Within this article, we observe that refugees, minors, and people over sixty enjoy procedural assistance to naturalize as Mexicans because

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they are exempted from the requirement of cultural exams. This exemption addresses the situation of special vulnerability of these groups. 2.3 Regulation of Dual Nationality The Mexican legal system allows citizens to have another nationality in addition to the Mexican one, as stipulated in Article 32 of the Constitution. The exercise of double nationality, in principle, is unrestricted except for some limitations established in the Nationality Law. The first limitation, provided for in Article 17, is the requirement that Mexicans who aspire to a public office or service that necessarily requires being Mexican (such as being part of the army) must expressly renounce their other nationality. Other restrictions, which do not involve renouncing dual citizenship, are those that require showing oneself as Mexican for certain legal acts. For example, included in Article 13 of the Nationality Law is the exercise of legal acts in Mexico. After the division of immigration matters from the General Population Law, Mexican legislation is organized around three migration regimes based on two laws: the Migration Law, which acts as a general law; and the Laws on Refugees and Children and Adolescents, which function as lex specialis on the subject, wherein the Migration Law is applied in a supplementary manner only in provisions not considered by the former norms.

3 In t e r n at io n a l P ro tecti on Regi me This first regime includes asylum seekers, refugees, beneficiaries of complementary protection, stateless persons, and visa beneficiaries for humanitarian reasons, migrant children and adolescents, as well as political asylum seekers. The legal status of virtually all of these people is governed by the following laws: Constitutional Article 11, Law on  Refugees, Complementary Protection and Political Asylum (Refugee Law), with the exception of visa beneficiaries for ­humanitarian reasons, who are governed by the Migration Law; and children and adolescents, who are governed by the General Law of Children and Adolescents, the Migration Law, and the Refugee Law. The Mexican Commission for Refugee Assistance (CO M AR) is the governing body responsible for administrative procedures regarding the recognition of refugee status and the granting of complementary protection. COMAR is an inter-secretarial office created by presidential

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agreement formed by the Secretariats of the Interior, Foreign Relations, and Labour and Social Welfare.35 To carry out its functions, this intersecretarial office depends on the General Coordination of the Mexican Commission for Refugee Assistance (CO M AR CG ), an independent administrative agency that is part of the Ministry of the Interior. COMAR CG is, in practice, the office that issues the resolutions of the procedures for the recognition of refugee status and for the granting of complementary protection. The application for the recognition of refugee status can be submitted directly in one of COMAR’s four offices, located mainly in Southern and Central Mexico, or in one of the thirty-two delegations of the National Migration Institute (INM),36 which, in turn, should contact the closest C OMA R office. This request must be answered within a maximum period of forty-five business days, as provided in Article 45 of the Refugee Law. During the writing of this Article, due to COMAR’s lack of capacity, 12,417 applications for recognition of refugee status were pending.37 This implies that, in all of these cases, the fortyfive-day period for the resolution of the request was exceeded. Refugee recognition requests can be submitted personally or through legal representation. The Law on Refugees establishes, in Article 11, the right to have legal representation, a right that can be exercised via a COMAR information process where the applicant is informed of the right to have legal representation during the procedure. However, despite this notification, there is a huge disparity between information on this right and effective legal representation.38 For example, according to data from the Observatory of International Protection of the Universidad Iberoamericana,39 between 2011 and 2016, 91 per cent of the applicants were informed about their right to have legal representation, yet only 12 per cent of these applicants had a legal representative. According to information from C OM AR CG , asylum applications have been increasing considerably since 2016. Asylum claims in Mexico have been resolved in the following way, as illustrated in table 6.1: The increases in two figures are particularly worrying; first, the statistics on procedure desertions by asylum seekers. Desertion means that the person who applied for asylum did not appear before the administrative authority (COMAR CG) to continue the process, or they could not be located to be notified about the developments of their application; second, the growth in the number of pending cases, which may be one of the causes of the rise in application desertions.

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1,296 2,137 3,424 8,795 14,603 17,116 47,371

Asylum applicants 176 389 663 2,218 4,205 2,141 9,792

Desertions 274 378 361 316 290 105 1,724

Withdrawals 533 826 1,288 2,353 2,247 472 7,719

Rejections 280 460 951 3,223 4,195 1,327 10,436

Recognitions

33 84 161 672 1,591 654 3,195

Complementary protection*

0 0 0 13 2,075 12,417 14,505

Pending

* Explained in the following section. ** At the time of writing, the 2018 figures covered until September 2018. Source: COMAR Statistics, 2018, https://www.gob.mx/comar/articulos/boletin-estadistico-de-solicitantes-de-refugio-en-mexico-182244. The information included in this table begins in 2013 since COMAR does not have statistical information for 2011 and 2012.

2013 2014 2015 2016 2017 2018** Total

Year

Table 6.1 Asylum applications in Mexico, 2013–18

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The Mexican refugee protection mechanisms include the 1951 refugee definition alongside the Cartagena Declaration refugee definition, incorporated in the Refugee Law. Both mechanisms are explained in the two following sections. The refugee definition of the 1951 Refugee Convention Statute was included in national legislation on 1 June 2000. This date corresponds to the Mexican state’s support of that instrument in the Official Gazette40 of the Federation.41 Despite this support, the category of refugee did not have an implementing rule until the definition was included in Article 13, section I, of the Refugee Law on 27 January 2011. In that section, the definition of refugee from the 1951 Refugee Convention was incorporated into the Mexican legal system in the following way: Article 13. Refugee status shall be recognized for any foreigner who is in national territory under any of the following cases: That due to well-founded fears of being persecuted for reasons of race, religion, nationality, gender, belonging to a certain social group or political opinions, the person is outside the country of their nationality and cannot, or because of such fears, does not want to, benefit from the protection of that country; or that, lacking nationality and being, as a result of such events, outside the country where they previously had habitual residence, they cannot or, because of such fears, do not want to, return to it.42 Article 13 adds gender as a reason to recognize refugee status in accordance with the provisions of the definition of refugee in the 1951 Convention, and explains that “gender-based persecution can refer to acts of sexual violence, domestic and family violence, female genital mutilation, punishment for transgressing values and customs, as long as the State cannot or does not want to grant effective protection.”43 The definition of refugee in the Cartagena Declaration was included for the first time in the legislation of 17 June 1990, in Article 42, section V I, of the General Population Law. It remained in the General Population Law for many years, until 27 January 2011, when it was included in the Refugee Law in Article 13, section I I . This section establishes that those who “have fled from their country of origin will be considered as refugees, because their life, security, or freedom have been threatened by widespread violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances that have seriously disturbed public order.”44

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3.1 Other Forms of International Protection: Complementary Protection, Visas for Humanitarian Reasons and Political Asylum Mexican legislation on international protection also incorporates complementary protection, referred to in other latitudes as subsidiary protection. This mechanism is applied in cases where C O M A R C G determines that there are no reasons to consider the person a refugee but they still require international protection because there are wellfounded reasons for the possibility of the person being subjected to torture or other cruel, inhumane, or degrading penalties or treatments in their country of origin.45 That is, in the Mexican law, the principle of non-refoulement is developed through complementary protection. Two aspects of this mechanism are of interest. First, unlike the status of refugee, complementary protection is considered a constitutive power (as opposed to refugee status that is declarative). Second, it is only considered to operate in cases where the person could be the victim of torture or cruel treatment. The other mechanism of international protection is the so-called visa for humanitarian reasons, which grants a temporary residence permit – unlike previous cases that resulted in a permanent residence document. This type of visa is provided for in the Migration Law and is granted by Mexican authorities to migrants, in accordance with Article 137 of the Migration Law regulations, if the recipient: 1 is a victim or a witness of a crime committed in national territory; 2 is an unaccompanied migrant girl, boy or teenager; 3 is an applicant for recognition of refugee status, complementary protection, or for statelessness recognition; 4 finds themselves in one of the following hypotheses considered to be a humanitarian cause: risk to health or life, in case of return; having a family member under his or her responsibility; or having a family member with a serious health condition, for example. The next component of the international protection regime is the mechanisms, exercised by the Mexican state, that allow a migrant to be recognized as a political asylee. To be a political asylee, it is necessary that the foreign person “finds their life, their freedom or security in danger due to political ideas or activities directly related to their public profile, and lacks the protection of their country.”46 In this case,

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the Ministry of Foreign Affairs grants political asylum (also known as diplomatic asylum). That decision is at the discretion of the Ministry, finding a basis only in subjective considerations about the situation of the person requesting asylum. Unlike the vast majority of legal systems that have eliminated or have never incorporated the possibility of applying for political asylum from embassies or consulates, Mexican legislation continues to maintain it. At present, in the face of the border closure policies of different states that oblige persons requesting protection to move by land, with the danger and exploitation that this entails, the maintenance of this political asylum policy must be highlighted as a positive fact. In any case, the reasons for political asylum (or diplomatic asylum) remain anchored in the mid-twentieth-century realities of refuge, and the reasons for persecution have not been extended to include cases other than persecution for political reasons. In addition, the recognition procedure moves in the margin of arbitrariness, without a clear procedure and, while the Ministry of Foreign Affairs makes the decision, it leaves the requesting person in a situation of legal uncertainty. 3.2 Statelessness The fifth international protection mechanism established by Mexican legislation is the recognition of stateless status. This was included in Article 3, section IV, of the Migration Law on 25 May 2011.47 A year later, Mexico established in its legislation a procedure for the determination of statelessness, which is provided for in Articles 42 and 54, section I; Article 109, section II, of the Migration Law; and Articles 149 to 151 of its regulation. To be recognized as a stateless person in Mexico, it is necessary not to be considered a national by any state in accordance with its legislation.48 In accordance with Article 150 of the Migration Law regulation, the IN M (National Institute of Migration) is the authority in charge of receiving the request for recognition of statelessness status and determining its origin. At the request of the I N M , CO M AR CG issues an opinion on each case.

4 Regulations on Regular Migration The second regime is that of regular migration, which establishes the guidelines and policies that every foreign person must follow to enter Mexican territory with prior authorization from the state. People who

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fall under this regime are economic migrants, their dependents, and migrants for educational reasons. 4.1 The Regulation of Residence and Stay Each of the three regimes – international, regular, and irregular migration regimes – grants the possibility of residing temporarily or permanently in national territory. The types of permits for each of these regimes are summarized below. The quantification of regular migrants in Mexico can be accounted for through several different statistics, such as people with work permits; people who initially were not authorized to live in Mexican territory, but who through immigrant regularization programs were able to obtain their migratory documents; and people who obtained a residence permit for their international protection needs, among many others. Therefore, to quantify this population in Mexican ­territory, the most reliable tools are the Population Census, which is carried out every ten years and the Inter-Census Survey (which replaces population counts), carried out every five years.49 According to information from both these sources, the population of foreign origin in Mexico has more than doubled since 2000, as shown in table 6.3. Moreover, it is worth mentioning the mechanisms of regularization procedures. People in an irregular situation have the possibility of ­regularizing their immigration status through state programs called Temporary Migration Regularization Programs (PTRM) implemented by the I N M . Through these programs, the organization “seek[s] to benefit foreigners who entered Mexico and who for various circumstances have not been able to regularize their immigration status.”50 These programs grant migratory documents to irregular migrants who have remained in Mexico. For example, the last regularization program was carried out from 9 January to 19 December 2017 and was directed for people who had entered Mexican territory before 9 January 2015.51 Among the benefits of these programs are temporary residence for four years in Mexico, permission to perform paid activities, freedom of movement in the national territory, and the possibility of applying for permanent residence at the end of four years. 4.2 Administrative Management People who are included in this regime, and that of irregular migration, are subject to the policies applied by the INM. The INM is a technical

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Visitor for humanitarian reasons

Regional visitor

Visitor without permission to perform remunerated activities Visitor with permission to perform remunerated activities Visitor with permission to carry out adoption procedures Border worker visitor

Permit name

Regular migration

Regular migration

Up to 180 days

Up to one year

Foreign persons with adoption purposes, who are nationals or habitual residents of a member country of the Convention on the Protection of Minors and Cooperation in Matters of International Adoption or of a country with which Mexico has signed an agreement on the matter. Foreign nationals of a country that shares territorial boundaries with the United Mexican States, who have a job offer indicating the occupation, required time frame, integrated salary or minimum wage, workplace, and employer’s proof of registration data. Foreign persons who demonstrate having the nationality of a neighbouring country or permanent residence in the same country. • Victims or witnesses of a committed crime; • Children or unaccompanied migrant adolescents; and • Applicants for recognition of refugee status, complementary protection or applicant for statelessness recognition.

Irregular migration/ international protection

Regular migration

Regular migration

Up to 180 days

Foreign persons with large financial solvency, frequent travellers, prominent persons, diplomatic or consular officials accredited in Mexico, and supervisors of a foreign company with a subsidiary in national territory who intend to carry out remunerated activities.

Entry and exit for up to three days Up to one year

Applicable regime Regular migration

Authorized duration of stay Up to 180 days (short term) Up to ten years (long term)

Persons to whom permit applies

Tourists (short term). Frequent travellers, researchers, scientists, humanists, artists, athletes, journalists of national or international prestige (long term).

Table 6.2 Residence permits for migrants in Mexico

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Applicable to foreigners who intend to enter Mexico in the condition of a temporary resident in order to remain for a period longer than 180 days and not longer than four years. Among them are: • Scientific researchers in jurisdictional waters of Mexico; • Guests of an organization or of a public or private institution; and • People with links to a foreigner who has the status of a temporary resident or a temporary resident student. Foreign person who intends to enter the national territory to carry out courses, studies, research, or training projects with a duration greater than one hundred eighty days. Refugees, beneficiaries of complementary protection, political asylum seekers and stateless persons. People who have links with a Mexican or permanent resident foreign person. Retirees with sufficient monthly income to support them. Temporary residents for a period of four years. Ancestors and descendants of a Mexican person up to second degree.

Regular migration, international protection

Regular migration

Time for studies to be carried out Indefinite duration

Regular migration

Up to four years

Sources: Migration Law (Articles 1, 3, sections I, VI, XI, XIV, XIX, XXIII, and XXXI; 16, fractions II and III; 21, fractions I and IV; 35, 37, fraction I I ; 39, fraction II; 40, fraction IV; 41, 43, 52, fraction VII, VIII and IX; 55, 56, 63, 126, 127, 129, and 130), the Regulations of the Migration Law (Articles 1, 2, 102, 107, 111, 112 and 113), and the General Guidelines for issuing visas issued the Secretariats of the Interior and Foreign Affairs.

Permanent residence

Temporary student residence

Temporary residence

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Table 6.3 Population of foreign-born residents in Mexico Year

Men

Women

Total

2000 2010 2015

249,337 487,606 507,868

243,280 473,515 499,195

492,617 961,121 1,007,063

Source: INEGI report on the Intercensal Survey 2015.

decentralized body, housed under the Ministry of the Interior.52 Since 2005, it has been recognized as an agency of national security,53 which empowers it to carry out actions aimed at protecting the security interests of the Mexican state, and, on many occasions, to violate the human rights of migrants in pursuit of this end. The IN M has a monopoly on most immigration policy in Mexico. In accordance with its creation decree,54 this body has the power for “planning, execution, control, supervision and evaluation of migratory services” and can also “process and resolve the admission, legal stay and departure from the country of foreigners, as well as the cancellation, when the case warrants, of the migratory qualities granted,” among many others. The contrast between the powers of CO M AR and the I N M is interesting, since, although both institutions execute Mexican immigration policy, each pursues completely different objectives and, as will be seen below, received different types of legislative and budgetary support from the Mexican state. Table 6.4 shows a comparison between the IN M and C O MA R . As shown, the INM’s function is to comply with so-called national security, which involves making borders permeable and having an active deportation policy, even if this entails violating migrants’ rights and the commitments the Mexican state has taken on in human rights issues. COMAR is responsible for international protection and prioritizes the protection of vulnerable migrants. It is also important to briefly analyze the financial capacity of each of these agencies responsible for Mexican immigration policy (table 6.5). The unequal budgetary allocation between the two organizations reflects the current priorities of the Mexican state on migration ­matters. Although the two institutions have different objectives and approaches, the policy implemented by the I N M has greater institutional and budgetary support than the policy for COMAR. During the

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Table 6.4 Differences between government agencies responsible for immigration policy Differences

INM

COMAR

A. Pursuit of different objectives

Carries out actions aimed at protecting the security interests of the Mexican state, regardless of possible violation of human rights. Has a larger budget allocation, and has more than doubled its budget from 2013 to 2018. Migration agents may detain and deport any irregular migrant at any time.

Studies the needs of refugees in national territory, seeks permanent solutions to the problems of refugees and seeks solutions for the protection of their human rights. Has a smaller budget allocation, with no capacity to increase its budget.

B. Unequal budget allocation C. Different powers/ obligations

C O M A R agents’ function is to protect asylum seekers from possible threats against their life, security, or freedom. However, agents can only exercise their powers at applicants’ request.

Table 6.5 Budget allocation for the agencies responsible for immigration policy Year

INM budget*

2013 2014 2015 2016 2017 2018

3,144,759,052 3,579,597,246 4,176,066,619 3,927,542,907 5,034,698,437 6,015,833,066

COMAR budget* 14,629,356 16,560,552 26,906,407 22,272,125 17,902,537 28,536,488

* Figures are expressed in Mexican pesos. Source: Ministry of Finance, “Annual budget,” https://www.cuentapublica. hacienda.gob.mx. Information for years 2011 and 2012 is currently not available.

last two years, asylum applications have increased considerably, which has not been matched with a corresponding budget allocation. In 2017, for example, C O M A R C G was able to assist 14,603 people, even though its budget was very close to that of 2014, when it responded to only 2,137 asylum claims.

5 M ig r a n t s ’ Ri ghts With the creation of the aforementioned regimes, various rights were recognized for migrants who arrive in Mexican territory. Most of these rights coincide with the regulation of rights for Mexican nationals, since, according to constitutional Article 1, “all persons will enjoy the

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human rights recognized in the Constitution and in international treaties of which the Mexican State is party.”55 However, many of these rights have a special protection content for migrants or are rights that only exist in this domain. Table 6.6 gives a brief description of the particular content of these rights for migrants. Finally, it is important to specify that according to Article 33 of the Constitution, any foreign person is excluded from exercising electoralpolitical rights in Mexico, that is, they cannot run for elected office or vote.

6 R e g u l at io n s o n Ir r egular Mi grati on The Mexican legal system has established two procedures to force migrants to leave Mexican territory: deportation and expulsion. A migrant is deported when they are in an irregular situation and are not complying with entry and residence rules. Expulsion is a discretionary power of the executive provided for in the constitution that does not describe the facts that give rise to this measure. A migrant is thus expelled from the territory without the right to any administrative procedure. 6.1 Expulsion In the first category, we can find the so-called expulsion acts. These acts find their foundation in Article 33 of the Constitution: Article 33 […] The Union Executive, prior hearing, may expel foreign persons from the national territory based on the law, which will regulate the administrative procedure, as well as the place and time detention will last. Foreigners may not, in any way, interfere in the political affairs of the country.56 This power is exclusive to the executive branch, allowing it to unilaterally expel a foreign person by holding a “prior hearing,” without an administrative procedure or without respect for procedural guarantees. There is, to date, no regulatory law establishing the expulsion criteria, administrative procedure of origin, and other particularities for exercising this constitutional power. Therefore, we can consider that this expulsion procedure does not apply. Although initially proposed as a presidential responsibility (which was inspired to avoid

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Table 6.6 Rights recognized for migrants Right Freedom of movement

Nondiscrimination

Health Legal security

Right of non-return

Principle of shared burden of proof

Right to family unity

Higher interest of children Right to nationality Right to consular care

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Description of the right Every migrant has the right to move freely throughout national territory. The INM is the only authority that is empowered to carry out immigration verification procedures to verify migrants’ nationality and immigration status in national territory. Any migrant, regardless of their immigration status, has the right not to be subject to discrimination based on ethnic or national origin, gender, age, disabilities, social or economic status, health conditions, pregnancy, religion, opinions, sexual preferences, marital status, or any other reason that has the effect of preventing or cancelling the recognition or exercise of their rights. Migrants have the right to receive medical attention and appropriate medications to treat the diseases they suffer from. In Mexico, all persons, regardless of their immigration status or place of origin, have the right in any administrative or judicial process to have the guarantees of due process met, complying with the essential formalities of the type of procedure in question. If needed, the assistance of interpreters and translators is mandatory. In the case of legal representation, it is not mandatory, but there is a public body called the “Federal Institute of Public Defenders” responsible for providing free advice to migrants and/or applicants for international protection. Persons seeking asylum, complementary protection or diplomatic asylum, refugees or beneficiaries of international protection have the right not to be returned to their country of origin where their life, freedom, or integrity are at risk. In the case of applicants for international protection, C O M A R must take into account the social and cultural context where the applicant comes from, as well as their age, gender, and other particular circumstances, in order to gather additional elements for the analysis of their request, not limited to the information provided by the asylum seeker. Migrants belonging to the regular migration and international protection regimes have the right to family unity and/or reunion. The spouses, concubinary, concubine, children, blood relatives to the fourth grade, blood relatives of the spouse, concubinary, concubine to the second degree, that depend economically on the migrant, have the right to request family reunification. In the case of refugees, the status of derivative refugee will be recognized. In administrative or jurisdictional acts that involve or affect migrant children or adolescents, the authorities of any level of government are obliged to make the most convenient decision to protect of their rights. Every person born in Mexico, regardless of the nationality or immigration status of their parents, has the right to Mexican nationality. Migrants, should they be subject to a criminal or immigration procedure, regardless of their immigration status, have the right for their consulate to be informed of their legal status and to receive assistance from them. Asylum seekers are exempted from this right.

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Table 6.6 Rights recognized for migrants (continued) Right Right to seek and receive asylum

Right to diplomatic asylum No penalty for irregular entry Right to ethnic and cultural diversity

Right to complementary protection

Right not to be detained in shelters On regularization or assisted return

Description of the right Any person who arrives in Mexico in the following situations has the right to be recognized as a refugee: those with well-founded fears of being persecuted for their race, nationality, religion, gender, membership in a certain social group or political opinions, is outside the country of their nationality, and cannot or, because of such fears, does not want to avail themselves of the protection of such a country; or those that have fled their country of origin, because their life, security, or freedom have been threatened by widespread violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances that have seriously disturbed public order. In Mexico, any foreigner who is being persecuted for political reasons has the right to request diplomatic asylum. Irregular entry is considered only a violation of administrative rules. In no case will a criminal sanction be applied to a migrant who enters the Mexican territory irregularly. Migrants entering the country, regardless of the situation in which they do so, have the right to freely express their culture and traditions. The Mexican state will promote the access and integration of migrants who obtain the condition of stay of temporary residents and permanent residents to the different domains of economic and social life of the country, guaranteeing respect for their identity and their ethnic and cultural diversity. People who do not meet any of the criteria to be recognized as refugees, but who require protection not to be returned to the territory of another country where their life is in danger or where there are well-founded reasons to believe that they would be in danger of being subjected to torture or other cruel, inhuman, or degrading treatment or punishment, will be granted complementary protection. The INM will not be able to carry out migratory verification visits in places where migrants are housed by civil society organizations or persons carrying out humanitarian assistance or human rights-protection acts. Migration authorities must inform migrants staying in I NM facilities about their right to regularize their stay in Mexico, under the guidelines established by the Migration Law, as well as the possibility of voluntarily requesting assistance to return to their country of origin.

Sources: The Constitution (Articles 1, 4, 11, and 30), the Migration Law (Article 2, para. 2; Articles 7, 11, 15, 67, 76, 92, 109, 112, section IV; and Article 121), and the Refugee Law (Articles 5, 8, 11, 23, 53, and 58).

foreigners participating in Mexican political life), the evolution of  human rights-protection mechanisms, and the International Refugee Law have left this unilateral procedure for the expulsion of foreigners obsolete.

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6.2 Deportation Mexican immigration legislation provides for a policy of deportation and assisted return. The Migration Law only defines assisted return, stating it is “the procedure by which the National Institute of Migration makes a foreigner leave national territory.”57 However, throughout the Law and its regulations, deportation and return are regulated as two independent procedures. Even the statistics of the Migration Policy Unit of the INM make a distinction between these acts. From a theoretical point of view, the difference between deportation and return could be based on the voluntary element of the latter, since an act of deportation does not require the authorization of the foreign person and stands against the will of the deportee, leading to a breach of immigration legislation for authorization to remain in Mexican territory. In contrast, assisted return is characterized by the supposed willingness of the migrant to return to their country of origin, even if authorized by the state to remain in Mexican territory. However, in practice, they are very similar procedures because both entail the expulsion of foreigners from the territory. Human rights organizations have thus continually denounced the fact that I N M personnel often force migrants to sign their “assisted return,” thus hiding, at least a part of, deportations. To carry out a deportation or an assisted return, an administrative procedure of deportation operates that, according to Article 121 of the Migration Law, establishes: The foreigner who is subject to an administrative procedure of assisted return or deportation will remain in the immigration station, observing the provisions of Article 111 of this Law. The assisted return and deportation can only be made to the country of origin or residence of the foreigner, except for those who have requested political asylum or recognition of refugee status, in which case the principle of no-return will be observed.58 The deportation or assisted return procedure involves the detention of the migrant. According to the Migration Law, “any foreign person who does not verify their regular stay in national territory must be presented to the immigration authority and lodged in immigration stations.”59 The terms used for detentions in immigration legislation seek to address administrative actions that involve violating the rights

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provided for in the constitutional text with a sense of legality. In practice, the word “presentation” is an act of detention and the term “accommodation” in migratory stations implies the transfer of the person to a centre where he or she will be deprived of their liberty. In this regard, it should be noted that Article 11 of the constitutional text recognizes the right to free transit of all persons and Article 21 recognizes the right to personal liberty by which no administrative detention (such as the one that concerns us in this case) may exceed thirtysix hours, in which case the detainee will have to be brought to justice. The so-called lodging mentioned in the Migration Law is, in practice, a deprivation of liberty contrary to constitutional mandates because detentions often last longer than the constitutionally established term (seventy-two hours), and can be extended during the administrative procedure of deportation. In addition, the migratory station entry order is an administrative order that involves the deprivation of liberty, against which the filing of an indirect protection order (habeas corpus) would proceed. What is more, migratory stations or provisional stays have been repeatedly described as places where “episodes of violence and excessive use of force by INM agents and other security forces in control and detention operations”60 take place. Within the irregular migration regime, we face the difficulty of measuring with certainty the annual total flow of people who cross Mexican territory; first, because not all of them have contact with any immigration authority; and, second, because of ongoing circular migration in Mexico. However, certain figures provide insight into the magnitude of this phenomenon, for example, immigration detention and deportation figures. In this regard, in 2015, more detention events occurred since the entry into force of the Migration Law, followed by 2016 and 2018, as shown in table 6.7. Table 6.7 also refers to people who were deported during that same period. Although there is a difference between the number of deportations and detentions, there is no reference to the reason behind this difference in the information of the Migration Policy Unit of the Ministry of the Interior. Deportation events occur throughout the national territory, with emphasis on the southeast region of Mexican territory. Before concluding this section, it is important to note that the Migration Law recognizes a broad set of rights for detained people in migratory stations, for example, the right to legal assistance, consular protection and translation or interpretation, and the guarantee

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Table 6.7 Migration detentions and deportations Year

Detention events

Deportations

2011 2012 2013 2014 2015 2016 2017 2018

66,583 88,506 86,298 127,149 198,141 186,216 93,846 138,612

61,202 79,643 80,902 107,814 181,163 159,872 82,237 112,317

Source: Migration Policy Unit of the Ministry of Interior (Secretaría de Gobernación, Boletines estadísticos de la Unidad de Política Migratoria).

of the principle of non-discrimination, among others. Nevertheless, in practice, these rights cannot be exercised effectively because there is no public policy to implement them. The process of detaining and deporting migrants who are not allowed to legally stay in the country usually presents multiple irregularities61 or even systematic violations of human rights. A broad network of social organizations that provide attention to, and document, the situation of migrants within Mexico has denounced this reality.62 This unlawful treatment of migrants, combined with the national security approach described below, unfortunately demonstrates that there are still contradictions between the migration legislation and the implementation of public policies for migratory matters. 6.3 Security Policy The immigration policy of the Mexican state has directly influenced the development of the irregular migration regime. This policy brings together factors such as geographic location and relevant political actors that guide migration policy toward a security model, moving it away from the correct application of migrant protection standards. The United States government is one of the main influencers of the Mexican migration policy. Since 2014, the US has declared a humanitarian crisis on its southern border because of the high volume of Central American migration, particularly due to the irregular entry

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of 52,000 unaccompanied minors.63 In response to this situation, the United States executive branch designed a strategy to address the problem of unaccompanied minors to ensure faster and more secure repatriation of these children and families. This translated into measures to prevent migration to the United States. The US discussed the implementation of this strategy with the governments of Mexico, El Salvador, Honduras, and Guatemala.64 In accordance with these measures implemented by the US government, during the six-year period between 2012 and 2018 the Mexican federal executive branch took three actions to fulfill the objectives established by the US government: 1) it created the Coordination of Integral Attention of Migration in the Southern Border (CAI M F S );65 2) created the 2014–18 Program for National Security in 2014, establishing that the consolidation of the Comprehensive Strategy for Assistance to the Southern Border would be essential to advance the establishment of a more modern, efficient, prosperous, and secure border;66 and 3) announced the Integral Southern Border Program,67 which aims to protect and safeguard the human rights of migrants entering and transiting through Mexico and to order international crossings to increase the development and security of the region. The consequence of implementing these three actions was an increase in immigration control operations carried out by the I N M , the Federal Police, the army, and the navy, including an increase in patrols along the train route and areas where migrants travel, in raids in remote places, and in mobile and fixed checkpoints.68 These measures, together with the Merida Initiative, a bilateral alliance to promote security between Mexico and the United States financed by the US government,69 resulted in the establishment of twelve naval bases in Mexican border rivers and three safety corridors that span more than 161 kilometres north of the borders with Guatemala and Belize.70 In addition, the measures led to the construction of Integral Border Attention Centres, a series of customs and defence checkpoints.71 In turn, the United States supported these measures with communication and inspection equipment and trained troops patrolling the border, and assisted with the development of mobility and surveillance capabilities.72 In the 2015 fiscal year, the US Congress provided an additional $79 million to the $115 million originally requested by the administration for the Merida Initiative, with the specific purpose of helping Mexico strengthen the security of its southern border.73

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The implementation of these security-focused measures resulted in a 58 per cent reduction in the flow of unaccompanied migrant children from Central America at the southern border of the United States,74 fulfilling the objective of US government policy and putting the security policy imposed by the United States above human rights in Mexico. All the above measures reflect that public policies regarding international protection and irregular migration are actually subordinated to immigration security policy, and are under the influence of the US government. These measures have led to the INM implementing security mechanisms, detentions, and deportations of persons entering Mexican territory without authorization from the Mexican state and in need of international protection.

7 In s t it u t io n a l R e s p onse to Complex S it uat io n s : T h e V e n ezuelan Exodus a n d M ig r a n t Caravans The following section briefly explains two of the main situations in which the legal framework mentioned above has been implemented to address the mass arrival of migrant people in Mexico. 7.1 The Venezuelan Exodus The flow of Venezuelan people arriving in Mexico with international protection needs has been ongoing since 2013, the first year for which COMAR has figures on asylum seekers and refugees, including Venezuelan ones. However, according to those statistics, this flow has increased considerably since 2016. In addition to this growth, as of 2016 there has been a substantial increase in the rates of recognizing the refugee status of people of Venezuelan nationality, increasing from 64 per cent in 2015 to 99 per cent in 2016. This evolution can be observed in table 6.8. The response to this flow of Venezuelan people with international protection needs by the Mexican state has been atypical compared with the response at the regional level. First, as seen in table 6.8, as of 2016, Venezuelan people have a refugee status recognition average of more than 99 per cent, the only exceptions being persons with dual nationality and persons to whom some exclusion clause was applied. Second, the totality of refugee status recognition for Venezuelan people between 2016 and 2018 (a total of 1,974 people), was made by applying the regional definition of refugee derived from the Cartagena Declaration.

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Table 6.8 Asylum applications of Venezuelan people in Mexico, 2013–18

Year

Applicants Venezuelan applicants Recognized Venezuelan who concluded from applicants the procedure Venezuela

2013 2014 2015 2016 2017 2018

1 56 57 361 4,042 4,249

1 56 53 342 912* 728

Non-recognized Recognition average Venezuelan (percentage) applicants

1 13 34 342 907 725

0 43 19 0 5 3

100 23.21 64.15 100 99.45 99.58

* It is important to note that due to the earthquake of 19 September 2017 there is a great lag in the resolution of asylum applications in Mexico. In 2017 alone, 3,067 cases of Venezuelan people were pending resolution, while in 2018, 3,458 applications were pending. Source: COMAR, Estadísticas 2018, https://www.gob.mx/comar/articulos/boletin-estadistico-desolicitantes-de-refugio-en-mexico-182244.

In fact, the first record of application of the Cartagena Declaration was observed in 2013, according to information from COMAR CG itself.75 Among the arguments put forth by COMAR CG to support recognition based on the regional definition of refugee were the food and health crisis in which Venezuela is immersed; the control of prices of food, medicines and other items of immediate necessity; the hospital crisis coupled with the failure of the Venezuelan government to complete the reconstruction of hospitals; the shortage of medicines; the health care system crisis in general; and the bankruptcy of the country’s economy; reasons that are sufficient enough to consider that the situation in Venezuela falls within the motive of massive human rights violations in almost all cases. The Mexican policy of recognizing Venezuelan people can be considered good practice at the Latin American level and should serve as guidance for recognizing the Venezuelan crisis and alternatives to its management.76 It would also be desirable for the Mexican government itself to replicate this good practice in the case of refugees from other nationalities, particularly Central Americans, who are also fleeing because of the widespread violence in their countries of origin. 7.2 The Migrant Caravan In October 2018, a group migration movement called the Migrant Caravan began, where people from Honduras, Guatemala, Nicaragua, and El Salvador toured the Mexican territory with the aim of arriving

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in the United States.77 These people entered (and continue to enter) in groups. The first group, of 7,000 people, entered on 19 October 2018;78 the second, of 2,500 people, on 28 October; and the third, of 2,000 people, on 2 November of the same year.79 This flow of people met very different responses, both because of the geographical region where migrants found themselves (many of these migrants were on the border of Tapachula in the southern state of Chiapas, a border that is one of the main regular and irregular entry points into the Mexican territory), and because during the entry events Mexico experienced a transition in its executive branch. On 1 December 2018, former president Enrique Peña Nieto left the presidency and current president Andrés Manuel López Obrador took office. In what follows, I draw on the document of the National Human Rights Commission (CNDH) titled “Participation of the CNDH in the Regional Hearing: Human Rights Situation of the People who Make up the Migrant Caravan before the Inter-American Commission on Human Rights.” In this document, the CN D H verified and recounted the events that occurred within the context of this caravan. This brief account is not intended to be exhaustive but seeks to give an overview of what happened with these caravans. According to the C ND H document, the migrant caravan consisted of four fundamental stages: [T]he first stage is constituted by the entry into Mexican territory, when a large number of people crossed, above or below, the Rodolfo Robles international bridge, and up until the moment in which they decided to walk toward their first destination, Tapachula, Chiapas. A second stage is made up of “small routes” made from municipality to municipality and from one federative entity to another; in this way, [the caravan] passed through Chiapas, Oaxaca, Veracruz, Puebla, the state of Mexico and Mexico City. The small routes meant that the observation of human rights focused on very specific aspects. The third stage is characterized by “long routes,” where the distance was much longer and concerns on the respect of human rights acquired a new dimension or a different intensity. [The caravan] passed through the state of México, Querétaro, Guanajuato, Jalisco, Nayarit, Sinaloa, Sonora and Baja California. The fourth and final stage is the arrival at the northern border of Mexico, specifically to Tijuana, Baja California. This stage dramatically changed what had been present along the route, mainly because the cara-

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van did not arrive here for one or two days, passing through, but as an end point and, therefore, with a stay that currently has three weeks but that will surely last for months.80 In the first stage, the response of the Mexican State was contrary to the provisions of all the rights contemplated in the Mexican legal order. When caravan members were at the bridge fence (on the border with Guatemala), Mexican state agents launched chemical substances to prevent them from entering Mexican territory and dispersing the migrants.81 Despite this, many people managed to enter Mexican territory, leading to the second stage of the caravan. In the second stage, the “You Are in Your House”82 program was put in place by the federal government in the federal entities of Chiapas and Oaxaca. This program promoted the settlement of migration in transit in those states by recognizing certain rights, among them the right to seek asylum. However, those rights were subject to joining a temporary work program. Accommodation alternatives for people with international protection needs were also not properly implemented; the CN D H therefore issued precautionary measures so that minors and their families could opt for alternative accommodations. The institutional response to the precautionary measures was diverse.83 “In some entities, such as Mexico City or Querétaro, the federal and local prosecutors carried out effective work for the protection of children and adolescents. However, that was not the case in the rest of the route.”84 In the third stage, a significant number of caravan members voluntarily decided to return to their country of origin. Up until December 2018, about 2,000 people chose this route. At this stage, migrants travelled through various territories, such as Mexico City, where a temporary shelter had been set up at the Jesús Martínez “Palillo” stadium.85 In the fourth stage, on arriving the border with the United States, the reception of migrants was not adequate. Overcrowding was caused both by the launch of tear gas by US authorities – seeking to disperse the people who were on the borderline – and by the fact that the Mexican state only provided accommodation for migrants at the Benito Juárez Sports Unit, which was inadequate. All the reported facts occurred as the Mexican government was ­transitioning. When the López Obrador government took office, the Migrant Caravan Care Plan was launched. All federal agencies participate in this plan under the direction of the Ministry of Citizen

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Security and Protection and of the Ministry of the Interior, especially the I N M , under the coordination of the National Civil Protection Coordination (C NP C ). The process of receiving migrants derived from this plan consists of providing immediate medical attention, food, hydration, and information at the time of their entry; registering and placing bracelets that allow migrants to identify themselves; access to services; and initiating and concluding the management of their migratory regularization.86 Migrants may choose to remain in a modular temporary shelter until they receive a visitor card for humanitarian reasons, which provides security and welfare conditions for their stay, or they may return to Guatemala and then return to Mexico to receive the document. These policies can be considered a positive response from the new administration. So far, according to the head of COMAR, more than 4,000 requests to recognize refugee status have been received as a result of the caravans. However, the position of the US government, as reflected in its Migrant Protection Protocols of January 2019, is worrying. These protocols establish the return of asylum seekers to Mexico, with the aim of discouraging them from attempting to enter illegally and from making false statements to remain in the United States.87

8 C o n c l u s i ons Since the time of independence, migration legislation and public policies in Mexico have oscillated between opening borders and implementing mechanisms for restricting the entry of foreigners. However, starting in 1990, and more strongly since 2000, Mexico’s migration legislation began a process of incorporation and harmonization of norms in line with internationally established standards. At least at the legislative level, a new era began of protection of migrants who reside or transit through Mexican territory. However, it is essential that the current migration regulatory framework, strongly influenced by advancements in human rights matters, translates into, effectively, respecting and protecting the most vulnerable. At the time of writing, the future of immigration policy remains uncertain; although multiple legislative mechanisms to protect people who arrive in Mexico are in place, US and Latin American policies (in general) on the rights of migrants are becoming increasingly restrictive and harmful.

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In the years to come, legislative reforms will not suffice. Instead, comprehensive policy focused on human protection, integration, and security will be necessary. Only with this new policy will we be able to affirm that the existing legal and political evolution has benefitted the neediest people, either for economic reasons or because of their international protection needs

Not e s   1 Ricardo Jiménez and Roberto Espinosa de los Monteros, “Secretaría de Gobernación: Políticas de Población y Migración (1821–1911),” in Población y Movimientos Migratorios, 1st ed., vol. 4 (Mexico: Instituto Nacional de Estudios Históricos de la Revolución Mexicana, 2000).   2 During this period, the General Colonization Law and the Foreigners Admission Regulations of 1823 were issued. This rule was not especially restrictive in terms of entering the territory and its purpose was to encourage the establishment of foreigners with financial resources. Thus, to be admitted foreigners required their resources to be identified. Naturalization was granted after three years of residence.   3 Jiménez and Espinosa de los Monteros, “Secretaría de Gobernación.”   4 Felipe Tena Ramírez, Leyes Fundamentales de México 1808–2005, 25th edition (Mexico: Editorial Porrúa, 2008).   5 Alicia Gojman, “Políticas Migratorias del Estado Mexicano con Respecto a los Extranjeros (1810–1950),” in Población y Movimientos Migratorios, 1st ed., vol. 4 (Mexico: Instituto Nacional de Estudios Históricos de la Revolución Mexicana, 2000).   6 Ibid.   7 Jiménez and Espinosa de los Monteros, “Secretaría de Gobernación.”   8 Gojman, “Políticas Migratorias del Estado Mexicano.”   9 Pablo Yankelevich, “Revolución e Inmigración en México (1908–1940),” Escuela de Historia no. 3 (2011–12): 39–71, https://core.ac.uk/ download/pdf/61701584.pdf. 10 Víctor H. Morales and Luis R. López, “La Política de Inmigración de México. Interés Nacional e Imagen Internacional,” Foro Internacional 3 9 , no. 1 (January-March 1999): 65–92, https://forointernacional.colmex.mx/ index.php/fi/article/download/1530/1520. 11 Laura Ruíz García, El Derecho Migratorio en México, 1st ed. (Mexico: Editorial Porrúa, 2005).

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12 Laura González-Murphy and Rey Koslowski, “Entendiendo el cambio a las leyes de inmigración de México” (Mexico: Woodrow Wilson International Center for Scholars-México Institute, 2011). 13 Claudia Dávila, “Refugiados Españoles en Francia y México. Un estudio comparative,” El colegio de México, 2012. 14 Dolores Pla Brugat, “La presencia española en México, 1930–1990. Caracterización e historiografía,” Migraciones y Exilios, no. 2 (2001): 157–88. 15 Ruíz García, El Derecho Migratorio en México. 16 Migratory Stations are places established or authorized by the Ministry of the Interior through the National Migration Institute for the temporary accommodation of people in the context of migration who cannot prove their regular immigration status in the country. C NDH, “Informe Especial. Situación de las estaciones migratorias en México, hacia un nuevo modelo alternative a la detención,” 2019, https://www.cndh.org.mx/sites/default/ files/documentos/2019-11/Informe-Estaciones-Migratorias-2019-RE.pdf. 17 González-Murphy and Koslowski, “Entendiendo el cambio.” 18 Convention signed on 1 November 1966 and ratified on 20 February 1975. 19 González-Murphy and Koslowski, “Entendiendo el cambio.” 20 Presidential decree that approves the “Agreement that permanently creates an inter-secretarial commission to study the needs of foreign refugees in national territory, which will be called the Mexican Commission for Refugee Assistance” (COMAR Creation Agreement, 1980). 21 Ratified on 23 March 1981. 22 Ibid. 23 Signed on 17 July 1980 and ratified on 23 March 1981. 24 Although the possibility of granting diplomatic asylum was part of the Migration Law of 1936, it never had a law regulating its application, and it operated in a discretionary manner. For this reason, we do not consider this law to be an international protection mechanism since its discretion and lack of application made it a selective protection mechanism. 25 Convention signed on 26 January 1990 and ratified on 21 September 1990. 26 Convention signed on 21 May 1991 and ratified on 8 March 1999. 27 Felipe Sánchez Nájera, Declaración de Cartagena en México: 34 Años de Distanciamiento Entre la Ley y la Práctica (Mexico: Universidad Iberoamericana Ciudad de México, 2018), https://programadh.ibero.mx. 28 In 2014, this law was reformed by adding an entire chapter on the granting of diplomatic asylum. 29 All of these topics will be examined below.

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30 Constitution, 2011. 31 Santiago Corcuera Cabezut and Felipe Sánchez Nájera, “El derecho a buscar y recibir asilo,” in Constitución Política de los Estados Unidos Mexicanos Comentada, 1st ed., ed. Jimena Ruiz Cabañas Rivero, Julio M. Martínez Rivas, and Santiago Oñate Yáñez (Mexico: Tirant lo Blanch, 2017), 285–90. 32 Constitution, 2016. 33 Article 17 of the Nationality Law establishes the obligation to renounce foreign nationality in case of running for a position chosen through popular election. 34 Nationality Law, Art. 13.  35 C O MA R Creation Agreement, 1980. 36 The powers of this unit as well as its organic structure will be analyzed in the “Legal Regime of Regular Migration” section. 37 C O MA R Statistics, 2018 38 Felipe Sánchez Nájera, Temas del Procedimiento Administrativo para el Reconocimiento de la Condición de Refugiado: Representación Legal, Entrevistas y Recursos de Revisión en los Procedimientos de Asilo en México (Mexico: Universidad Iberoamericana Ciudad de México, 2019), https://programadh.ibero.mx. 39 Sánchez Nájera, Temas del Procedimiento Administrativo. 40 The Official Gazette of the Federation is the organ of the Mexican government, whose function is to publish the laws, decrees, regulations, agreements, circulars, orders, and other acts, for their entry into force. Information available at: https://www.dof.gob.mx/ayuda/Instructivo_TE_ SEGOB.pdf. 41 1951 Refugee Convention enforcement Decree, 2000; the decree was signed by the Mexican authorities and sent to the Secretary General of the United Nations on 7 June 2000. Information available at: https:// treaties.un.org/doc/Publication/UNTS/Volume%202110/v2110.pdf. 42 Refugee Law, 2011. 43 Refugee Law Exposition of Motives, 2010. 44 Refugee Law, 2011. 45 Ibid. 46 Law on Refugees, Complementary Protection and Political Asylum, 2011. 47 Migration Law, 2011. 48 Ibid. 49 Carla Pederzini Villareal, Posibilidades y Limitaciones de Censos y Encuestas de Hogares para la Medición de la Migración en México, Documentos de Politica Migratoria, DPM 05 (Mexico: Programa

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Interdisciplinario en Estudios Migratorios [C IDE-MIG] y Centro de Investigación y Docencia Económicas [CIDE], 2018), https://migdep. colmex.mx/publicaciones/DPM-05.pdf. 50 Dirección General de Regulación y Archivo Migratorio del Instituto Nacional de Migración, Guía Para Ingresar Trámite Migratorio al Amparo del Programa Temporal de Regularización Migratoria, 2017, https://www.gob.mx/cms/uploads/attachment/file/204702/Guia_para_ Ingresar_Tramite_del_PTRM.pdf. 51 Ibid. 52 Decree of I N M creation, 1993. 53 I NM Agreement, 2005. 54 Decree of I N M creation, 1993. 55 Constitution, 1917. 56 Ibid. 57 Article 3, Migration Law, 2011. 58 Article 121, Migration Law, 2011. 59 Migration Law, 2011. 60 Consejo Ciudadano del Instituto Nacional de Migración, Personas en detención migratoria en México. Misión de Monitoreo de Estaciones Migratorias y Estancias Provisionales del Instituto Nacional de Migración (Mexico: Consejo Ciudadano, 2017), 6, https://tbinternet.ohchr.org/ Treaties/CESCR/Shared%20Documents/MEX/INT_CESCR_CSS_ MEX_28755_S.pdf. 61 Ibid. 62 Ibid. 63 “Homeland Security says 52,000 minors at U.S. borders since October,” Reuters, 20 June 2014, https://www.reuters.com/article/us-usa-immigrationchildren/homeland-security-says-52000-minors-at-u-s-borders-sinceoctober-idUSKBN0EV24E20140620. 64 C B P Addresses Humanitarian Challenges of Unaccompanied Child Migrants: US Customs and Border Protection, 2017. https://web.archive. org/web/20170127204431/https://www.cbp.gov/border-security/ humanitarian-challenges. 65 C A I MF S Decree of Creation. 66 “Programa para la Seguridad Nacional (2014–2018). Una Política Multidimensional para México en el Siglo X X X I,” Secretaria de Gobernación, 30 April 2014, http://www.dof.gob.mx/nota_detalle.php?co digo=5342824&fecha=30/04/2014. 67 South Border Program, 2014, https://web.archive.org/web/20181115222529/ https://www.gob.mx/presidencia/articulos/que-es-el-programa-frontera-sur.

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68 Ximena Suárez, José Knippen, and Maureen Meyer, Un Camino de Impunidad. Miles de Migrantes en Tránsito Enfrentan Abusos y Medidas Severas en México (W OLA, FU N DAR, and Casa del Migrante Saltillo, 2016), https://www.wola.org/wp-content/uploads/2016/09/Camino-deImpunidad_Espanol-1.pdf. 69 Gabriela Díaz, Operativos Móviles de Revisión Migratoria en las Carreteras de México. Una Práctica Discriminatoria e Ilegal (Mexico: El Colegio de la Frontera Norte, 2016), http://unviajesinrastros.imumi. org/wp/wp-content/uploads/2016/08/Operativos-de-revision-migratoriaen-carreteras.pdf. 70 Ibid. 71 Ibid. 72 Clare R. Seelke and Kristin Finklea, U.S.–Mexican Security Cooperation: The Mérida Initiative and Beyond (Washington, DC : Congressional Research Service, 2017), https://fas.org/sgp/crs/row/R41349.pdf. 73 Ibid. 74 Alejandra Castañeda, “¿Qué es el Programa Frontera Sur?,” Boletín 1 (Mexico: Colegio de la Frontera Norte y Comisión Nacional de Derechos Humanos, 2016), http://observatoriocolef.org/wp-content/uploads/ 2016/06/BOLET%C3%8DN-1-Alejandra-Casta%C3%B1eda.pdf. 75 Sánchez Nájera, Declaración de Cartagena en México. 76 Ibid. 77 Comisión Nacional de Derechos Humanos, Informe Especial: Participación de la CNDH en la Audiencia Regional: Situación de Derechos Humanos de las Personas que Integran la Caravana de Migrantes ante la Comisión Interamericana de Derechos Humanos, 2018, http://www.cndh.org.mx/ sites/all/doc/Informes/Especiales/INF-CNDH-CIDH-CARAVANA.pdf. 78 Comisión Nacional de Derechos Humanos, Informe Especial. 79 Ibid. 80 Ibid. 81 Ibid. 82 “El Presidente Enrique Peña Nieto anuncia el Plan ‘Estás en tu casa’ en apoyo a los migrantes centroamericanos que se encuentran en México,” Gobierno de México, 26 October 2018, https://www.gob.mx/segob/ prensa/el-presidente-enrique-pena-nieto-anuncia-el-plan-estas-en-tucasa-en-apoyo-a-los-migrantes-centroamericanos-que-se-encuentranen-mexico-180268. 83 Comisión Nacional de Derechos Humanos. Informe Especial. 84 Ibid. 85 Ibid.

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86 Plan de atención a la Caravana Migrante con visión Humanitaria, 2019. 87 “Estados Unidos Implementa Protocolos de Protección a Migrantes en su Frontera Sur,” Embajada y consulados de Estados Unidos en México, 29 January 2019, https://mx.usembassy.gov/es/estados-unidos-implementaprotocolos-de-proteccion-a-migrantes-en-su-frontera-sur.

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7 Immigration Legislation in Peru: Between the Promotion of Human Rights and National Security L u i s a F e l i n e Fr eier a n d   V a l e r i a   Ar on  Sa id

1 O r ig in a n d E vo l u t i on of Peru’s M ig r at io n   P o l icy a n d Legi slati on Like other Latin American countries, Peru’s immigration policies have historically oscillated between openness and exclusion. In the early nineteenth century, in the decades following independence, Creole elites took measures to limit access to Peruvian citizenship for immigrants, with the aim of consolidating their grip on power, and placed restrictions on naturalized persons’ rights of representation.1 However, these restrictive policies worked against the intended objective of attracting European immigrants, so the government reformed them in the 1920 Constitution.2 Nevertheless, the growing influence of Darwinian eugenics at the beginning of the twentieth century led the country to pass legislation that excluded certain immigrants on the basis of their race or ethnicity.3 Additional immigration restrictions were based on categories of unwanted immigrants. For example, Law No. 4,891 of 1924 was intended to deter the entry of migrants without sufficient economic resources.4 Peru’s first migration law, Law No. 7,744, was approved in 1933, during the military government of General Luis Miguel Sánchez Cerro (1931–33). The law required foreigners, over eighteen years of age whose stay in the country surpassed sixty days, to enroll in a foreigners’

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registry, as well as carry identifying documentation when going about commercial or civil activities. In the context of the Second World War, Law No. 9,148 of 1940 was the first regulation to address the naturalization of foreigners. This law required that individuals seeking Peruvian nationality practise a trade or hold a profession, and be literate in Spanish, in addition to more subjective stipulations, such as proving their morality and good manners, and not being considered civilly incapable.5 Under the revolutionary government of the armed forces (1968–80), Peru’s immigration policy reflected the strategy of other Latin American military governments, which saw the management of human mobility as a policy tool to serve national security and population control, although the government of General Juan Velasco Alvarado (1968–75) differed from the rest of dictatorships in its clearly leftist political orientations.6 In 1991, at the beginning of Alberto Fujimori’s authoritarian rule,7 Peru passed a new Immigration Law, via Legislative Decree No. 703. This law constituted a more comprehensive immigration legislation, creating the National Immigration Council, establishing different types of visas and immigration statuses, regulating the duration of immigrants’ stays and residencies, introducing the categories of refugee and asylee, and stipulating that foreigners residing within Peruvian territory were entitled to the same rights and obligations as Peruvian nationals. Despite these advances, the decree operated under a vision of immigration in which national security prevailed over migrants’ rights.8 In addition, the law was never effectively regulated.9 The absence of a specific, written regulation allowed officials to apply the law at their own discretion, which resulted in the violation of migrants’ human rights. After returning to democratic rule in 2000, several domestic and international public institutions, as well as civil society organizations, highlighted the obsolete nature of Peru’s 1991 Immigration Law. The Ombudsman’s Office, the Andean Commission of Jurists, and the Andean Parliament all warned that the law rendered foreigners within the country highly vulnerable. These institutions also demanded that the Peruvian government incorporate family unity principles and the rights of equality and non-discrimination, as well as mechanisms to protect children into the country’s existing immigration legislation. As a result, in 2008, the Immigration Law was amended through Legislative Decree No. 1,043. This amendment established a set of new migration statuses and extended the allowed length of stay for

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several of these new categories. In 2012, Supreme Decree No. 3-2012IN enacted the Text of Administrative Procedures (Texto Único de Procedimientos Administrativos, TUPA). The TUPA sought to regulate the procedures and administrative services carried out by the General Directorate of Immigration and Naturalization (D I G E M I N ), and to serve as a guide for DIGEMIN administrative staff in migration-related matters. The TUPA has since been modified on several occasions10 for different reasons, among them, to improve administrative attention to citizenship issues.11 The 2008 reform of the Immigration Law was initially promoted by President Alejandro Toledo (2001–06), who led Peru’s first democratic government after the Fujimori authoritarian era. Yet, in practical terms, an important first step toward immigration-related legislative reform was the creation of the Intersectoral Working Group for Migration Management (MT I GM), signed by President Alan García in 2011 through Supreme Decree No. 67-2011-P CM . The M T I G M is ascribed to the Ministry of Foreign Affairs, and is composed of twentytwo members, three observers, and two coordination commissions; one dedicated to interagency affairs and the other to coordination with civil society organizations. 12 In 2012, Legislative Decree No. 1,130 led to the creation of the National Superintendence of Migration (hereafter Migraciones), which elevated the status of this entity to that of a specialized technical agency under the jurisdiction of the Ministry of the Interior. Thus, Migraciones has been institutionalized as an organism with administrative, functional, and financial autonomy to exercise its duties.13 Among the main functions of the MTIGM are proposing guidelines for comprehensive migration management, promoting the strengthening and updating of regulations in this domain, advancing the protection of migrants’ rights, as well as formulating actions and strategies that support regular migration. The creation of the MTIGM was innovative because of its multi-sectoral nature. Its members have formal ties to various ministries and entities related to migration management, such as the Ministry of the Interior, the Ministry of Labour and Employment Promotion (MTPE), and the Presidency of the Council of Ministers, among others. As a result of political pressure from different institutional actors and sectors of civil society, a new law, Legislative Decree No. 1,236, was enacted in 2015. However, since it was never regulated, it did not enter into force, with the exception of some of its preliminary and complementary Articles.14

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This legislative decree sought to maintain “the balance between the protection of immigrant rights and policies regarding national security.”15 According to Migraciones, Legislative Decree No. 1,236 was an immigration law that was “among the most modern in the region and that also [strengthened] the country’s national security, [attracting] and [facilitating] business, investment and talent, while at the same time, [promoting] an orderly migration with protection to the most vulnerable people.”16 The strengths of the law lie in promoting migration; protecting vulnerable migrant populations; attracting businesses and commerce; strengthening state security; bolstering the status of Migraciones (because the law gave it the power to inspect foreigners, a task previously carried out by the Peruvian National Police [PNP]); creating the Migration Registry; introducing a set of new migration statuses; simplifying administrative procedures; and including the principle of family unity, among other advances. Finally, in early 2017, two migration-related documents were approved: the Temporary Stay Permit (PTP) for Venezuelan citizens and Legislative Decree No. 1,350. The former document sought to regularize the migration status of Venezuelans in the country and enable the beneficiaries to work legally. Legislative Decree No. 1,350 introduced slight changes to simplify and organize the existing immigration legislation. These modifications also sought to protect the  fundamental rights of national and foreign citizens, and to strengthen national security. In addition, this decree included the “Principle of Comprehensiveness,”17 which declared the State’s ­recognition of migration as a complex and transversal phenomenon, requiring migration to be promoted and managed through a multidimensional response of an array of actors, each with its own set of responsibilities. The 2017 decree sought to place greater emphasis on the role played by Migraciones, and simplified and reduced different migration statuses. Overall, Legislative Decree No. 1,350 facilitates the entry and stay of highly-qualified foreign citizens, as well as the access to residence for their family members; favours volunteering activities; specifies that foreigners may enter into labour contracts or provision of services agreements in the public sector; protects migrants’ fundamental rights, especially those of vulnerable populations; and empowers Migraciones to draft and adopt criteria to assist these populations. The decree also created the Migratory Information Registry (R I M), which aims to strengthen the state’s interoperability

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platform (electronic data exchange between state entities to implement online services) and improve internal security. It also extended the prohibition of entry into the country, in cases of expulsion, from ten to fifteen years. The 2017 decree came into effect with the publication of its regulation on 27 March 2017, which, at the same time, repealed both Legislative Decree No. 703, and its amendment, as well as Legislative Decree No. 1,236.18 Additionally, on 27 April of the same year, Supreme Decree No. 15-2017-R E was enacted, which approved the National Migration Policy (2017–25). With this law, Peru positioned itself as a country with modern and regulated immigration laws.

2 M ig r at io n D ata , D e m ographi cs, and C o n t e x t : A H is to r ic al Pers pecti ve As a consequence of the immense wealth that Peru possessed during the sixteenth century, the country was one of the most attractive ­destinations for European conquerors, so much so that 36 per cent of them  settled in Peru.19 It is estimated that, during this century, 200,000  European migrants arrived, mainly Spaniards, but also Germans, Greeks, and Genoese, among others.20 In 1542, the Leyes Nuevas, issued by Charles I of Spain, abolished the enslavement of Indigenous peoples. Spanish colonizers therefore increasingly resorted to exploiting Africans for forced labour. Thus, in the nineteenth century, Black people from Africa were forcibly brought into the country, mainly to the sugarcane growing valleys of the coast of Peru, such as Saña, Cañete, Chincha, and Pisco. Vast numbers of this population were also taken to large cities, to the extent that, by the seventeenth century, the majority of the population of Lima, the capital, was Black.21 During the ­following century, the Spanish Crown’s interest in the Viceroyalty of Peru decreased, and the Viceroyalty of New Spain became the new centre of European immigration. The discovery of guano in Peru during the mid-nineteenth century, however, led to a dramatic increase in the foreign population in Lima, given the boom in exports of this resource. Subsequently, the exhaustion of guano, and its related crisis, led to a sharp decrease in the number of foreigners residing in Peru.22 By the beginning of the twentieth century, the Chinese were the most numerous foreign group in the country, followed by the Italians. The immigration of Chinese people was initially promoted by state policies – such as the so-called Chinese Law enacted in 1849, which

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allowed the entrance of high numbers of Chinese workers. This legislative move sought to address a predicted shortfall of agricultural manpower because of the imminent abolition of slavery in 1854. From 1849 to 1854 alone, between 90,000 and 100,000 Chinese citizens arrived in Peru, who were often treated as “semi-slaves.”23 Despite these migratory flows, during the twentieth century, Peru was one of the countries in Latin America with the lowest percentage of immigrants relative to its total population.24 As table 7.1 shows, Peru’s immigrant population experienced clear growth in absolute numbers; however, during the twentieth century the percentage of immigrants remained under 1 per cent. International immigration to Peru increased in the twenty-first century, at first because of the financial crisis of 2008 and then, with greater impact, because of the economic, social, and political crisis in Venezuela.25 The most notable increase in Venezuelan immigration to Peru occurred around 2017 and 2018. Table 7.2 thus shows that, in 2020, the percentage of the immigrant population in relation to the total population of Peru reached 2.39 per cent, an unprecedented number in the republican history of the country. A representative survey conducted in 2020 found that the main causes of migration for the Venezuelan population were the high cost of living (70 per cent) and the lack of food (57 per cent) in Venezuela.26 In 2019, the five main countries of origin of immigrants residing in Peru were Venezuela (84.4 per cent), Colombia (3.6 per cent), Spain, the United States, and Ecuador (1.3 per cent for each country).27 Peru has been the second most important host country for Venezuelan migrants and refugees, after Colombia, with over 1 million Venezuelan nationals residing, regularly or irregularly, in the country in 2021.28 It is important to point out the increasing vulnerability of the Venezuelan population, and the changes in their socio-economic characteristics. According to IOM data, 81.8 per cent of Venezuelan migrants who entered Peru through the northern border in Tumbes in October 2017 were between 18 and 35 years old; 62.6 per cent were men; 68  per cent had higher university or technical education; 75.9 per cent were single; and, within the group of those who had children, 75 per cent had left them in Venezuela.29 At the end of 2019, however, 61.2 per cent of women and only 38.1 per cent of men had university or technical ­studies, and 94.4 per cent of respondents entering the country indicated that they could only afford food for their family for two days at most.30

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Table 7.1 Peru: Immigrant population, 1960–2000

Total population Immigrant population Percentage

1960

1970

1980

1990

2000

9,932,000

13,195,000

17,328,000

21,827,000

25,915,000

67,000

67,000

67,000

65,000

66,000

0.67

0.50

0.38

0.29

0.25

Source: Migration Policy Institute (MPI), “International migrants by country of destination, 1960–2017,” last accessed on 23 April 2020, https://www.migrationpolicy.org/programs/ data-hub/charts/international-migrants-country-destination-1960-2017.

Table 7.2 Peru: Immigrant population, 2010–20

Total population Immigrant population Percentage

2010

2015

2020

29,030,000 104,700 0.36

30,047,000 154,800 0.51

32,625,948 1,200,000 3.67

Source: Migration Data Portal, “Peru: International Migrant Stock,” last accessed on 8 April 2021, https://migrationdataportal.org/data?t=2019&cm49=604&i=stock_abs_.

3 C u r r e n t L e g is l at io n on I mmi grati on, A sy l u m , a n d N ati onali ty Peru subscribes to various international pacts and agreements that regulate issues related to human rights, migrants, and refugees. The United Nations (UN) promotes the protection of migrants through the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which was signed and ratified by Peru in 2013. Peru is also part of several key human rights treaties, such as the International Covenant on Civil and Political Rights (signed in 1977 and ratified in 1978), the American Convention on Human Rights (signed in 1977 and ratified in 1978), the Convention Relating to the Status of Refugees (signed in 1954 and ratified in 1964), the Convention on Diplomatic Asylum (signed in 1960 and ratified in 1962), and the Convention on the Reduction of Statelessness (approved in 2014). At the national level, the 1993 Political Constitution of Peru (hereafter Constitution) recognizes a number of rights in favour of foreigners, such as: a) the right to have an interpreter present when

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summoned by any authority;31 b) equal treatment to foreign and domestic investment (although subject to Peruvian law and without request for diplomatic protection);32 and c) property rights under conditions equal to those of Peruvian nationals33 (without request for diplomatic protection or exemption).34 The Constitution, however, does not explicitly indicate the legal status of international treaties, which are determined through the jurisprudence of the Peruvian Constitutional Court.35 This entity differentiates between human rights treaties, which have constitutional status, and all other treaties, which are assigned legal status. As previously mentioned, the law governing immigration issues in Peru is Legislative Decree No. 1,350, which was enacted on 7 January 2017 and regulated on 27 March of the same year. In accordance with the Constitution and the treaties to which the country subscribes, the first article of the law underscores the importance of respecting the fundamental rights of foreigners. In the same section, the law incorporates the “Principle of Comprehensiveness,” which conceptualizes migration as a complex phenomenon, and, thus, commits the state to promoting and managing migration through a multidimensional and multi-sectoral approach.36 Other important principles include the “Principle of Recognition of the Contribution of Migrants to the Development of the Country and the Principle of Free Transit,”37 the “Principle of Unity of Migrant Families,”38 and the “Principle of Non-Criminalization of Irregular Migration.”39 In short, these principles establish that foreigners hold the same rights and obligations as nationals, except in specific areas stipulated in the same law, such as the limitation of property rights in border areas.40 Likewise, immigrants are granted access to health and education services, even in cases of irregular migration. The law also defines the role of immigration authorities. Migraciones, as a specialized technical agency within the Ministry of the Interior, deals with internal matters, such as passport control and the issuing of residence permits. The Ministry of Foreign Affairs is responsible for addressing external aspects of migration governance.41 These include overseeing asylum policy and fulfilling Peru’s international commitments in the domain of humanitarian protection, and overseeing certain aspects of internal migration, such as regularizing vulnerable foreigners’ status to facilitate their protection.42 To regularize irregular migrants, the Immigration Law favours addressing situations that violate or negatively affect migrants’ dignity.

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Building on this principle, Supreme Decree No. 1-2017-IN was issued on 3 January 2017, establishing a procedure through which foreigners who are parents of underage Peruvian children or Peruvian children with disabilities, and who have an irregular migration status, can request that the government take administrative steps to regularize their migration situation. However, this procedure only benefits those parents of Peruvian nationals, who have legally entered the national territory, and who do not have a criminal record. The same day, through Supreme Decree No. 2-2017-I N , the guidelines for granting the Temporary Stay Permit (P T P ) for people of Venezuelan nationality43 were approved.44 The PTP is a document issued by Migraciones that establishes a person’s regular migration status within the country, and enables the beneficiary to carry out a series of activities allowed under Peruvian law, such as signing employment contracts, accessing basic health services, opening a bank account, and obtaining a Taxpayer Identification Number (RUC) to conduct financial activities and pay taxes. The beneficiaries of the P T P were given one year to choose one migration status established in the law.45 Since its inception, the PTP has had four phases. The first three took place during the government of Pedro Pablo Kuczynski (July 2016 to March 2018), and the last one, during the government of Martín Vizcarra (March 2018 to November 2020). During Kuczynski’s presidency, three supreme decrees extended the deadlines and ­facilitated the procedures for obtaining the PTP (002-2017-I N , ­023-2017-I N , and 001-2018-I N ). Those decrees expressed the ­welcoming message that former president Kuczynski had extended to Venezuelans looking to legally reside in Peru during his July 2017 Message to the Nation. At that time, welcoming Venezuelans into Peruvian territory was an act of democratic compromise and a message against the authoritarian regime of Nicolás Maduro. 46 In contrast, during the presidency of Martín Vizcarra, Supreme Decree 007-2018-IN of August 2018 shortened the application period for the PTP and was the last norm on this permit. Since 31 December 2018, the PTP has no longer been issued. Since 15 June 2019, Peru has required a humanitarian visa for all Venezuelan citizens who intend to enter the country regularly. This visa is regulated by Resolution No. 000177-2019 of Migraciones and must be requested, free of charge, at Peruvian consulates. Among the requirements are a passport, apostilled criminal records, a copy of an

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identity card, two photographs, and a completed form. Minors do not require a criminal record, but do require a travel authorization. Likewise, the passport can be replaced by the apostilled birth certificate for children under nine years of age. Exceptions to the requirement of the humanitarian visa include elderly people, pregnant women in situations of extreme vulnerability, or minors who travel to reunite with their parents. In these cases, Venezuelan citizens are allowed to enter Peruvian territory with their identity card. Finally, on 21 October 2020, the forthcoming entry into force of the Temporary Stay Permit Card (CPP) was announced through Supreme Decree 010-2020-I N. This document aims to provide regular status to foreigners of all nationalities who reside in Peru. To apply, they are required to have previously paid – or commit to paying within one year – all the fines and other immigration-related debts they have acquired. Although issues regarding asylum seekers and refugees are referenced in Legislative Decree No. 1,350, other laws specifically deal with these groups, such as Law No. 27,840, also known as Law on Asylum,47 and Refugee Law No. 27,891, both published in 2002. The regulation for Legislative Decree No.  1,350, approved by Supreme Decree No. 7-2017-IN, also has supplementary provisions for asylum and refuge issues. The topic of nationality is legislated and regulated via Supreme Decree No. 4-97-IN, which was enacted in 1996. This decree establishes that Peruvian nationality is recognized and classified in three ways: by birth, by naturalization, and by choice.48

4 R e c o g n it io n o f F orei gners’ Ri ghts In 2017, the Peruvian Congress approved Legislative Decree No. 1,350. Article III of the decree, titled the “Principle of Recognition of the Contribution of Migrants to the Development of the Country and the Principle of Free Transit,” recognizes the economic, social, and cultural contribution of foreigners residing in the country. As a result, the decree promotes a safe migration that defends the freedom of international transit. In connection with this, Article I, titled the “Principle of Respect for Fundamental Rights,” guarantees respect for foreigners’ fundamental rights. In the same vein, the “Principle of Integration of Migrants,” the “Principle of Unity of Migrant Families,” and the “Principle of Migratory Formalization,” Articles I V , V , and X I I respectively, all

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recognize migrants’ rights. These principles seek to help integrate foreigners, and their families, into Peruvian society, by promoting the necessary measures for formalizing foreigners’ immigration status, and favouring migratory regulations that operate within a framework of respect for human rights, dignity, and freedom.49 Civil and social rights are specifically recognized in Article 9.1 of Title I, titled “General Provisions,”50 in which the following is established: 9.1. The state recognizes foreigners’ enjoyment and exercise of the fundamental rights established in the Political Constitution of Peru, such as access to health, education, and work, under equal conditions as nationals, except for the prohibitions and limitations established in current regulations.51 These rights are more clearly delineated in the implementing regulations of the Immigration Law,52 which contain specific articles (Article 6 through Article 11) that address the rights of foreigners, as well as their access to health services, education, the legal system, social programs and services, and labour rights. Foreigners in irregular migratory situations are also granted access to health services, education, and labour rights. The regulations also emphasize that access to the legal system must be administered in a non-discriminatory fashion, in terms of a person’s migratory status, and with special attention given to foreigners in situations of vulnerability. Legislative Decree No. 1,350 introduces the right of family reunification, defining a migrant family unit as a spouse, or the person making up the de facto union, and an underage son or daughter, or of legal age (up to twenty-eight years old), as long as they are pursuing vocational or higher-education studies, or are disabled.53 The decree establishes that a Peruvian national who has a family relationship with a foreigner may petition the corresponding authorities for their partner to be granted resident immigration status. Likewise, family members of foreigners with temporary migration status in Peru, who have been residing in the country for longer than ninety days, can be assigned, according to the family reunification provision, the same temporary migration status as the principal foreign family member. Individuals over eighteen years of age, and who have lived in the country continuously for more than two years before a political election, are allowed to vote in municipal elections by registering in the

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Electoral Registry of Foreigners Residing in Peru.54 Foreigners in Peru may be elected to appointments in local and regional governments.55 However, they are prohibited from being elected to the following positions: member of congress,56 president of the republic,57 state minister,58 and magistrate of the Supreme Court.59 The latter two positions are not elected by popular vote but by presidential appointment or public competition.

5 R e s id e n c e a nd Mi grant L a b o u r R e g ulati ons As for international instruments that seek the protection of immigrant workers, the most significant is the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, adopted by the General Assembly of the U N in 1990. Peru became a party to the convention by signing it in 2004, and reaffirmed its position again by ratifying the convention one year later. The framework of the recently enacted Legislative Decree No. 1,350 sets out two types of migration statuses at the national level: resident and temporary. Thus, migratory status can be defined as a condition that the Peruvian state grants to a foreigner,60 in relation to their personal situation, or with regard to the labour activity they conduct within the national territory.61 In this respect, both Migraciones and the Ministry of Foreign Affairs have the authority to grant migration status. Within the scope of their respective responsibilities, these institutions must determine the type of migration status and the term of residence to be granted, as well as any other specifications.62 This decree authorizes the entry and / or residence of foreigners within Peruvian territory; this migration status is also renewable and allows multiple entries to Peru.63 There are eighteen different types of resident migration status. However, not all of them give foreigners permission to work. The migration statuses that allow foreigners to work within the resident regime are: designated, research, worker, family member of resident, suspended, humanitarian, investor, permanent, and family member of official.64 For example, the category of designated resident allows a foreigner to perform work activities that entail specific tasks and functions, or a job that requires professional, commercial, or specialized technical knowledge as mandated by a foreign employer.65 Meanwhile, foreigners holding research

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resident status are allowed to carry out highly specialized incomegenerating research activities in the public or private sector.66 Worker resident status undoubtedly provides the greatest possibility for carrying out paid work activities. Unlike the research or designated resident statuses, which have restrictions regarding skills required, worker resident status allows foreigners to conduct activities either as dependent or independent workers, both in the public and private sectors, under a formal employment contract, or through a contract for provision of individual services.67 Within the framework of the worker resident category, the law highlights the case of crossborder workers, who enjoy benefits outlined by corresponding international agreements.68 However, benefits for cross-border workers are granted by virtue of an employment contract that must receive the MTPE ’s prior approval. The temporary migration status allows foreigners – without the intent of residing permanently – to enter and temporarily remain within Peruvian territory.69 There are nine distinct temporary migration categories, four of which allow the pursuit of paid work: artistic or athletic, temporary study or research, business, and temporary worker / appointee. The types of paid activities foreigners can conduct depend on the migration category to which they belong. For example, foreigners under the artistic and athletic temporary migration categories are only allowed to conduct income-earning activities linked to artistic, cultural, athletic, or related events;70 whereas foreigners ­designated in the business temporary category may carry out activities that are corporate, legal, and contractual in nature; involve specialized technical assistance; or other services of a similar nature.71 Legislative Decree No. 1,350, enacted in 2017, builds on Legislative Decree No. 1,236 of 2015, by further advancing the recognition of migrants’ rights. Legislative Decree No. 1,350 maintains certain ­migration statuses from the latter decree, such as entertainment, humanitarian, and investor, among others. However, for simplification purposes, the visitor category was eliminated, leaving only the current resident and temporary migrant categories72 in effect. Finally, it is important to mention that, regardless of their migration status, foreign workers must register in the Registry of Migrant Information (RIM). Managed by Migraciones, this registry is an integrated database that registers the personal data of Peruvians and foreigners, as well as other migration-related information, with the purpose of strengthening the country’s migration management.73

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6 R e g u l at io n s o n Expulsi ons Within the framework of the current immigration law, we observe a continuation of long-standing tensions between paradigms that favour people’s fundamental rights and those that privilege national security. This is due to the fact that, although Legislative Decree No. 1,350 uses various mechanisms that seek to protect people in vulnerable situations, it also includes new sanction mechanisms that operate under a protectionist paradigm. This is evidenced by the law’s establishment of a definition for the term “expulsion” and grounds for this sanction, as well as the designation of competent authorities responsible for executing this task. There are three types of immigration-related sanctions in Peruvian legislation: a fine, mandatory departure, and expulsion. Existing ­legislation specifies that the following actions merit expulsion: a submitting false documentation or providing false personal information during immigration procedures; b recidivism in any of the cases of mandatory departure provided for in Article 57 of the current legislative decree; c failure to comply with the mandatory departure imposed in accordance with this legislative decree; d being in an irregular migration situation, as a result of bypassing immigration control when entering the country, in spite of having a restriction of re-entry due to a mandatory departure order in force; e infringing on the nation’s cultural heritage; f carrying out activities that infringe upon public order, internal order, or national security; g by mandate of the Judiciary; [and] h being set free after serving a prison sentence ordered by a Peruvian court.74 The implementing regulations of Legislative Decree No. 1,350 define “expulsion” as a situation in which the foreigner leaves the national territory, which leads to a re-entry restriction to Peru for a period of up to fifteen (15) years75, from the day of their exit immigration control. Their re-entry is conditional upon payment of the respective fine.76

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In the previous legislation, the re-entry restriction period was up to ten years. The “detention” or “internment” of foreigners on the grounds of expulsion is not expressly provided for in Legislative Decree No. 1,350. However, the regulations of the decree suggest detaining the offender to determine their identity and immigration status77 so as to guarantee their departure from the country.78 Migraciones insists that “retention” and “detention” are two very different processes; the first lasts for only a few hours, while the second takes more than 24 hours.79 This distinction is questionable both legally and practically.80 However, it is worth keeping in mind that, according to the eleventh final complementary provision of Supreme Decree No. 7-2017-I N , Articles 200.4 and 212.2 of the regulations will not enter into force until the official issuance of the regulatory norms for both police retention procedures, in cases of infractions to migratory norms, as well as mandatory departures and expulsions procedures. It thus becomes clear that there is an urgent need to regularize the definition and procedures of “retention.” Migraciones is the only entity in charge of administering sanctions in the realm of expulsions. It is also the sole authority tasked with overseeing migration control, by regulating entries to, and exits out of, the country, as well as reducing potential threats to the domestic public order and national security in general.81 Other mechanisms of migration control applied by Migraciones include the inadmissibility of foreigners, a measure that means the refusal of entry to Peruvian territory for all legal corresponding purposes.82 The same entity must also deal with migratory alerts, which constitute surveillance warnings about alleged migration-related violations involving foreigners or Peruvian nationals.83 These often call for restricting the entry or exit of a person, and require additional control actions, among other consequences.84 Unlike expulsion procedures, this measure only blocks a person’s entry into, or departure from, the country. These migratory sanctions differ from one another because they each derive from distinct operating grounds. While the basis for the migratory alerts is grounded on Article 48 of Legislative Decree No. 1,350, titled “Admission Restriction and Protection Measures,” expulsion measures are rooted in Article 58 of the same decree, fi ­ ttingly titled “Expulsion.” Finally, it is important to highlight the PNP’s role, which cooperates with Migraciones during the procedure’s preliminary stages, assisting

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with the administrative sanctioning process. The P N P also enforces the migratory sanctions imposed by Migraciones, since this entity has the capability of detaining the infringer, to determine their identity  and immigration status,85 as well as enforcing the imposed sanction, to ensure their departure from the country.86 Under these specific scenarios, detained foreigners will be informed of their right to contact their consular representative, as provided for in international treaties and agreements to which Peru is party.87 In the case of vulnerable populations, such as refugees and asylees, the Ministry of Foreign Affairs collaborates with Migraciones to determine whether the most appropriate course of action is to expel the foreigner, or offer protection to them.88 The maximum allowable period for determining the existence of administrative migratory offences is four years, from the time the infraction was committed, or, if it was an action carried out continuously, from when these activities ceased.89 In addition, Legislative Decree No. 1,350 provides for exceptions to the application of the three sanctioning procedures (fine, mandatory departure, or expulsion), in cases involving minors or individuals with an absolute and permanent disability.90 It is important to specify that Peru’s Immigration Law accounts for the participation of children and adolescents in all processes related to travel and identification documents, because the law ­establishes immigration control measures that follow the Children and Adolescents Code, as well as the international treaties and conventions to which Peru is party.91 Such exceptional legal efforts guarantee that rights and protections are extended to even the most vulnerable people.

7 In t e g r at i on and A n t i- D is c r im in at i on Poli ci es The Constitution establishes that every person has the right to equality before the law, and that no person shall be discriminated against on the basis of their origin, race, sex, language, religion, opinion, socioeconomic status, or any other condition.92 However, racism and discrimination have pervaded Peruvian society since colonial times. According to Ardito Vega, the way in which Peruvian society has denied and naturalized discrimination has added great complexity to the phenomenon. As a result, public policies meant to address discrimination have been limited in scope.93

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Several state-led initiatives have attempted to tackle racism, such as the Ministry of Culture’s Alert Against Racism, a web-based platform that offers information and tools to citizens to help them fight against ethno-racial discrimination in Peru.94 However, this website makes no explicit mention of discrimination against foreigners. On a similar note, both Legislative Decree No. 1,350, and its regulations, fail to incorporate articles and / or principles that address the topic of discrimination against migrants. The law does include certain articles, such as Article IV, titled “Principle of Integration of Migrants,” which outlines how “the state promotes the integration of foreigners and their families into Peruvian society and culture.” However, the absence of specific programs, norms, and policies aimed at combatting discrimination toward immigrants reveals the lack of attention toward the potential discrimination a foreigner resident might face in Peru.

8 A sy l u m a n d R e f u g e e Regulati ons Before the onset of the Venezuelan displacement crisis, throughout its history, Peru had hosted a relatively low number of refugees. At a national level, as shown in table 7.3, the largest number of refugees hail from countries in Latin America and the Caribbean. For example, in 2000, of the 436 refugees from these regions residing in Peru, 400 were of Cuban origin. In 2015, there were 523 Cubans compared to 559 Colombia refugees. In 2020, of the 3,968 refugees from Latin America and the Caribbean, 2,628 were Venezuelan, 706 were Colombian, and 494 were Cuban. Note the relatively low number of recognized Venezuelan refugees despite the high numbers of Venezuelan asylum seekers (see figure 7.1). In terms of legal classifications, both the refugee and asylum statuses are included in the country’s immigration law, which establishes that asylum and refuge are legal status granted by the Peruvian state for the protection of its holders. Applicants for these legal statutes do not require a visa or immigration status for their admission and stay in the national territory.95 The Ministry of Foreign Affairs is in charge of all issues on this topic. It has the authority to grant asylum or refugee status, as well as authorize asylees’ and refugees’ temporary departure from the country. The

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Table 7.3 Peru: Refugees by continent, 2000–20 Year

LA and Caribbean

Africa

Asia

Eastern Europe

Middle East

Total

2000 2001 2002 2003 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020

437 458 464 489 545 622 687 753 835 885 928 945 923 961 1,071 1,219 1,358 1,510 2,146 2,547 3,968

0 0 0 0 0 0 0 0 0 5 5 5 10 14 17 25 31 41 49 67 67

64 37 38 36 32 34 34 34 34 19 19 13 15 15 22 26 33 36 41 38 38

175 176 172 170 159 156 153 149 147 149 143 137 123 104 101 107 110 111 167 58 59

10 10 5 15 21 23 23 45 44 34 34 30 29 34 64 77 83 90 98 125 125

686 681 679 710 757 835 897 981 1,060 1,092 1,129 1,130 1,100 1,128 1,275 1,454 1,615 1,788 2,501 2,835 4,257

Source: United Nations High Commissioner for Refugees, “Population Statistics Database,” last accessed on 23 April 2020, http://popstats.unhcr.org/en/overview.

ministry must work together with Migraciones, the entity in charge of granting immigration cards and managing immigrants’ incorporation into the R I M. Existing legislative frameworks pertaining to refugees and asylees are not limited to the Immigration Law. In 2002, the Peruvian government enacted two important laws to address these categories: the Refugee Law and the Law on Asylum. Before the latter law was enacted, Peru did not have any formal law to regulate international protection.96 It is important to highlight the main differences that exist between these categories. The refugee category covers broader concepts than those of asylum. On the one hand, asylum is understood as the protection that the state grants to foreigners who have proven

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600,000 537,552 487,049

500,000 400,000 300,000

230,845

200,000 100,000

20

19

20

18

20

17

20

16

20

15

37,728 4,368

20

14

20

13

20

12

20

11

20

10

20

09

20

08

20

07

20

06

20

05

20

04

20

03

20

20

02

130 174 222 328 479 533 570 359 257 484 473 500 374 350

01

20

20

00

0

56

20

7

Figure 7.1 Peru: Total numbers of asylum seekers (of all national origins), 2000–20

that they are being persecuted for political motives or crimes, and whose life or liberty is in danger.97 On the other hand, requirements for a foreigner to obtain refugee status are generally broader, as  reflected in the refugee definition laid out in Article  3 of the Immigration Law, which incorporates elements of the 1951 Convention Relating to the Status of Refugees and, more broadly speaking, the Cartagena Declaration on Refugees.98 The Refugee Law involves various institutions, such as the Ministry of Foreign Affairs, the Special Commission for Refugees (CE P R), the Review Commission for Refugee Affairs, and the United Nations High Commissioner for Refugees.99 To guarantee a final verdict on the situation of refugee applicants, the CEPR has a maximum period of sixty days to resolve individual petitions, with exceptions in certain cases.100 The law, thus, delineates the legal procedures that must be carried out on behalf of refugees; it also stipulates that they have the same rights and obligations as foreigners residing in the country, therefore the same rights as Peruvian nationals.101 The Law on Asylum is grounded on various conventions to which Peru is party, such as the Convention on Asylum of 1928, which was signed in Havana, as well as the 1933 and 1954 Conventions on Diplomatic Asylum, which were held in Montevideo and Caracas, respectively.102 This law introduces the legal framework to prevent

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cases of discrimination against asylum-seekers, and ensure asylees’ rights to conduct remunerated activities, education, housing, and food, among others.103 Overall, the Refugee Law and the Law on Asylum highlight the principle of family reunification104 and family regrouping,105 respectively. In both cases, the refugee and asylum statuses are extended to the holder’s spouse, positioning the state as a guarantor of the principle of family unity.

9 T h e R o l e o f t he Courts At the core of the Peruvian judicial system, the Peruvian Constitutional Court is the highest court in the country when it comes to interpreting, protecting, and enforcing the Constitution.106 In 2015, the court ruled in favour of a Brazilian citizen, by declaring that the latter’s case against Migraciones was well founded.107 The foreigner had filed a protection request with Migraciones, which had, in turn, sanctioned his mandatory departure from the country, preventing him from ­re-entering Peruvian territory and residing with his family, who were living in Peru. In adjudicating this case, the Constitutional Court’s decision was based on two principal considerations. First, a foreigner’s entry to, or residence in, the country cannot be considered a crime. Second, the human rights of migrants are a state priority, and therefore their rights must prevail over sanctioning laws. The court’s consideration of these issues highlights the importance placed on the right to the protection of the family unit, and, also, on children’s best interests, because the mandatory departure did not take into account that the sanctioned foreigner had an underage daughter of Peruvian nationality. Therefore, it was established that among the material guarantees of due process, the particular circumstances of each migrant should be taken into account in this type of decision. This assessment was not made in the Brazilian foreigner’s original application. In conclusion, the Brazilian foreigner’s mandatory departure was annulled, because it was considered a violation of the rights of due process and of the protection of the family. The Constitutional Court, as a result of this ruling, requested that all responsible immigration authorities issue regulations – within three months – to clarify the formal and material guarantees of migrants, and create legal and formal mechanisms to regulate similar situations.

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Another example of the increasingly important role of the courts in Peruvian migration policy is a series of lawsuits regarding the passport requirement for Venezuelan citizens introduced at the end of 2018. The National Human Rights Coordinator (CNDDHH) filed a habeas corpus against this requirement, claiming that it violated the rights of freedom of movement, equality, non-discrimination, and being able to request asylum. On 5 October 2018, the Fifth Special Criminal Chamber for Trials with Free Prisoners of the Superior Court of Lima recognized the claim as partially founded,108 leading to the passport requirement being revoked. However, Migraciones and the Ministry of the Interior appealed the court’s judicial decision to the same court,109 invoking the principle of territoriality of Peruvian law, the separation of powers, and the power of the president to direct foreign policy. A few days later, on 11 October, the same court granted their appeal,110 leading to the reinstatement of the passport requirement. However, human rights organizations, such as the C N D D H H and IDEHPU CP , continue to question this measure and state that “it is not compatible with the constitutional provisions and international obligations of the Peruvian State.”111

10 T h e In f l u e n c e o f t h e S outhern Common M a r k e t a n d t h e A n d e an Communi ty i n t h e D e v e l o p m e n t o f I mmi grati on L e g is l at io n a n d Poli ci es Peruvian immigration legislation is influenced by both the Southern Common Market (ME R C O SUR ), as well as the Andean Community (C A N ). While Peru is not a member state of M E R C O S U R ,112 as an associate state it forms part of the trade bloc.113 Peru’s membership in C A N , in fact, generates more benefits and obligations with other member states.114 Neither entity is supranational, but intergovernmental, because each individual state maintains their autonomy and sovereignty in applying the approved norms. The M E R C O S U R Residence Agreement, signed in 2002, did not enter into force until 2009. It allows citizens of member or associated states to reside in Peru for two years via a temporary residence permit. This free mobility agreement is considered very progressive by ­international standards. It is only surpassed by the free-mobility arrangements of the European Union.115 The progressiveness of MER C OSUR ’s mobility agreements largely rests on the fact that they

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grant individuals the right to work, equality of treatment in labour conditions, and access to education for children, among other examples. In the case of Peru, Migraciones publicly circulated a booklet in 2013, which was intended to explain the purpose and function of the MERCOSUR Residence Agreement for nationals of member and associated countries carrying out this procedure.116 As for CAN, the idea of cooperating on migration management had been discussed among member countries since the late 1990s. As of 1996, there was already talk of creating an Andean Migration Card  (TAM), which was finally implemented in 2006, for the free ­circulation of people between member countries. The concept of free circulation continued to evolve in the following years and, in 2001, the Andean Passport was created. This is a common travel identity document shared among CAN member countries with the purpose of facilitating migratory movements.117 In the years that followed, the paradigm of the free movement of migrants continued to advance. In 2003, the Andean Labour Migration Instrument was created through Decision 545, which “contemplates the establishment of norms for the progressive and gradual circulation and residence of Andean nationals in the sub-region with labour ­purposes.”118 As evidenced by the creation of these inter-state mechanisms, the member countries of C A N are committed to guaranteeing the free movement of migrant workers. Moreover, in 2004, Decision 583 ­created the Andean Instrument on Safety and Health at Work, which places special emphasis on migrants, by seeking to “guarantee the adequate social protection of labour migrants and their beneficiaries so that, as a result of migration, their social rights are not diminished.”119 In 2021, the Andean Migration Statute was approved.

1 1 C o n c l u s i ons For decades, migration management did not appear to be a priority for the Peruvian government – in fact, the first regulated immigration law in the country only entered into force in 2017. However, this is changing. In 2017, the government enacted the new Immigration Law, along with its respective regulations, and the first Temporary Stay Permit for Venezuelan citizens, as well as Supreme Decree No. 15-2017-RE, alongside the National Migration Policy (2017–25), which seeks to guarantee an efficient inter-institutional and -governmental coordination of migration management.120 To elaborate the National Migration

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Policy (2017–25), the Ministry of Foreign Affairs worked together with MTIGM. As a result, public and private institutions, as well as civil society organizations, played a role in the design and negotiation process that led to the creation of this policy. However, despite the advances presented by Legislative Decree No. 1,350, compared with previous laws, tensions still arise between two ideological paradigms, on both the normative level and in terms of policy implementation: on the one hand, the promotion of the human rights of migrants; on the other hand, the protectionist vision of the state, which favours national security and immigration control. The promotion of human rights is reflected in the following principles: the “Principle of Respect for Fundamental Rights,” the “Principle of Unity of Migrant Families,” the “Principle of Higher Interest of Children and Adolescents,” and the “Principle of Non-Criminalization of Irregular Migration,” among others. In addition, special attention is shown toward groups in situations of vulnerability, either through specific migration statuses, such as the humanitarian category,121 or by means of exempting these groups from having sanctions imposed on them. Nevertheless, the Immigration Law also increases the mandatory period to expel a person and authorizes the P N P to intervene in certain stages of the sanctioning administrative procedures and in the enforcement of imposed sanctions.

Not e s

  1 Diego Acosta Arcarazo, The National versus the Foreigner in South            

America: 200 Years of Migration and Citizenship Law (Cambridge: Cambridge University Press, 2018). 2 1920 Peruvian Constitution, Art. 29; Acosta Arcarazo, The National. 3 David FitzGerald and David Cook-Martín, Culling the Masses: The Democratic Origins of Racist Immigration Policy in the Americas (Cambridge, MA : Harvard University Press, 2014). 4 Acosta Arcarazo, The National. 5 Frank H. Araujo-Alvarez and Pamela Dulanto Paniagua, “A propósito del Decreto Legislativo No.1,236 – Nueva Ley Migratoria,” Revista Derecho & Sociedad, no. 46 (2016): 343 6 Acosta Arcarazo, The National. 7 The Fujimori government was considered authoritarian after the 1992 self-coup.

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  8 For example, the National Immigration Council was responsible for proposing to the Peruvian president the annual maximum number of foreigners who could be admitted as residents (Legislative Decree No. 703, Art. 10.c).   9 In Peru, a regulation (in Spanish, reglamento) is a document that includes specific provisions for the application of a law. Every law in the country must have a regulation to be enforced. 10 Through Ministerial Resolution No. 633-2015-IN and Supreme Decree No. 3-2016-I N , among others. 11 Through Ministerial Resolution No. 1791-2016-IN, approved in December 2016, more than 180 requirements pertaining to TUPA , which generated bureaucratic obstacles and made procedural processes cumbersome, were modified or eliminated. 12 Supreme Decree No. 15-2017-RE, 1.2 Background. 13 Legislative Decree No. 1,130, Art. 1. 14 Only the following sections came into force: a. Preliminary Title; b. Arts. 65, 67, 69, 70, 71, 77, and 88; c. Tenth Final Complementary Provision. In terms of migratory regularization, the pertinent parts of: a. Arts. 60, 61, 62, 63, and 64, and b. Ninth Final Complementary Provision, came into force. 15 José Koechlin, Ley de Extranjería en el Perú: Antes y después (Madrid: Observatorio Iberoamericano sobre Movilidad Humana, Migraciones y Desarrollo, 2016), 10. 16 “El Perú tiene ahora una de las leyes más modernas de la región,” Superintendencia Nacional de Migraciones, 30 September 2015, www.migraciones.gob.pe/index.php/el-peru-tiene-ahora-una-de-las-leyesde-migraciones-mas-modernas-de-la-region. 17 Legislative Decree No. 1,350, Art. I X. 18 Under Article 103 of the Peruvian Constitution, every law comes into force the day following its publication. However, some laws contain ­special provisions regarding their validity, generally subject to the ­regulation of the law. In this case, the Immigration Law was published on the first day of January 2017, specifying that the law and its regulations would become effective on 1 March 2017, except for the Preliminary Title and Title I of the Legislative Decree, which would enter into force the day after its publication. The regulation was finally published on 27 March of the same year, rendering the Immigration Law effective as of that date. 19 Augusto Ruiz Zevallos, “Mentalidades y vida cotidiana (1850–1950),” in Historia del Perú. Etapa Republicana, ed. Teodoro Hampe Martínez (Barcelona: Lexus, 2000). 20 Ruiz Zevallos, “Mentalidades y vida cotidiana.”

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21 Luis Gómez Acuña, “La Esclavitud en el Perú colonial,” Apuntes. Revista de Ciencias Sociales, no. 48 (2001): 40. 22 Ruiz Zevallos, “Mentalidades y vida cotidiana.” 23 Ricardo La Torre Silva, “La Inmigración China en el Perú (1850–1890),” Boletín de la Sociedad Peruana de Medicina Interna 5, no. 3 (1992), https: //sisbib.unmsm.edu.pe/bvrevistas/spmi/v05n3/inmigraci%C3%B3n.htm. 24 Organización de los Estados Americanos, Migración Internacional en las Américas: Tercer Informe del Sistema Continuo de Reportes sobre Migración Internacional en las Américas, SICREMI (Washington: OEA , 2015). 25 Isabel Berganza and Luisa F. Freier, “Política Migratoria y de Refugio: hacia una Política de Integración para un País de Acogida,” in Proyecto Bicentenario: contribuciones al Perú en Camino a su Desarrollo (Lima, Peru: Universidad del Pacífico, 2021). 26 Equilibrium CenDE, 2020, https://equilibriumcende.com/segundaencuesta-regional-2020. 27 I NE I , 2019, https://www.inei.gob.pe/media/MenuRecursivo/noticias/ notadeprensa231.pdf. 28 R 4V, 2021, https://r4v.info/es/situations/platform. 29 International Organization for Migration (IOM), Perú – Flujo de Migración Venezolana, Ronda 1 (Lima, Peru: IOM, 2017), https://displacement.iom.int/system/tdf/reports/informeNarrativo_DTMR1_ FlujoMigratorioVenezolanos_0.pdf?file=1&type=node&id=2430. 30 I O M, Perú – Flujo de Migración Venezolana, Ronda 7 (Lima, Perú: IOM, 2020), https://migration.iom.int/node/7791. 31 Political Constitution of Peru, Art. 2.19. 32 Constitution, Art. 63. 33 Constitution, Art. 71. 34 As Art. 71 of the Constitution states: “However, within 50 kilometers of the borders, foreigners cannot acquire or possess by any title, mines, lands, forests, waters, fuels or energy sources, directly or indirectly, individually or collectively, under penalty of losing, for the benefit of the State, the right thus acquired, except in the case of public necessity expressly declared by supreme decree approved by the Council of Ministers in accordance with the law.” 35 Judgment 47-2004-AI /TC, Art. 18–22. 36 Legislative Decree No. 1,350, Art. 9. 37 Legislative Decree No. 1,350, Art. 3. 38 Legislative Decree No. 1,350, Art. 5. 39 Legislative Decree No. 1,350, Art. 7. 40 Legislative Decree No. 1,350, Art. 9.

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41 Legislative Decree No. 1,350, Art. 5. 42 Legislative Decree No. 1,350, Art. 11. 43 According to the information provided by Migraciones from the IXth Extended Session of the M TI G M in June 2017, more than 7,000 Venezuelan citizens in a situation of vulnerability had officially requested the PTP. 44 It is important to emphasize that the PTP is not considered an immigration card. Since many public institutions only recognize Peru’s National Identification Card (DN I ) and immigration cards for their procedures, granting the PTP still makes it difficult for holders to access certain goods and services. On this point, see the preparatory document for the thematic hearing before the Inter-American Commission on Human Rights, session 168 “Situation of human rights of Venezuelan people in the context of human mobility in the Americas.” 45 Supreme Decree No. 2-2017-I N , Art. 11. 46 Valeria Aron, and Soledad Castillo Jara, “Reacting to Change within Change: Adaptive Leadership and the Peruvian Response to Venezuelan Immigration,” International Migration, Special Issue (2020), https:// onlinelibrary.wiley.com/doi/abs/10.1111/imig.12761. 47 It is important to note that in Latin America, the term “asylum” is widely understood to refer to the Latin American system established by no fewer than ten treaties on asylum and extradition, and “refuge” to refer to the UN system. As demonstrated by Franco (2004), asylum-refuge dualism not only reduces the legal force of the concepts used, but also has serious potential consequences for the protection of refugees in Latin America. 48 Supreme Decree No. 4-97-I N , Art. 4, Art. 8, and Art. 16. 49 Legislative Decree No. 1,350, Art. 12. 50 Legislative Decree No. 1,350. 51 Legislative Decree No. 1,350, Art. 9.1. 52 Approved by Supreme Decree No. 7-2017-IN. 53 Legislative Decree No. 1,350, Art. 37 and Art. 38 respectively. 54 Secretarial Resolution of Registro Nacional de Identificación y Estado Civil’s (R EN I EC) No. 56. 55 Law of Municipal Elections, Law No. 26,864, Art. 7. 56 Constitution, Art. 90. 57 Constitution, Art. 110. 58 Constitution, Art. 124. 59 Constitution, Art.147. 60 Legislative Decree No. 1,350, Art. 28.1. 61 Legislative Decree No. 1,350, Art. 28.2.

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62 Legislative Decree No. 1,350, Art. 28. 3. 63 Legislative Decree No. 1,350, Art. 29.2. 64 Ibid. 65 Legislative Decree No. 1,350, Art. 29.2.b. 66 Legislative Decree No. 1,350, Art. 29.2.g. 67 Legislative Decree No. 1,350, Art. 29.2.h.; The law indicates that resident migrant worker status can be offered either in a subordinate or in an independent manner through a work contract. This is contradictory because the principal element of an employment relationship is subordination, i.e., when there is no subordination, there can be no employment relationship. At the same time, the law indicates that one must have an employment relationship (employment contract, administrative relationship, or contract to provide individual services) to access this migration status. 68 Legislative Decree No. 1,350, Art. 29.1.h. 69 Legislative Decree No. 1,350, Art. 29.1. 70 Legislative Decree No. 1,350, Art. 29.1.b. 71 Legislative Decree No. 1,350, Art. 29.1.d. 72 For example, in Legislative Decree No. 1,236, the category of tourist was included within visitor migration status, which is included in the temporary migration status in Legislative Decree No. 1,350. 73 Regulations of Legislative Decree No. 1,350, Art. 13. 74 Regulations of Legislative Decree No. 1,350, Art. 198. 75 Prior to Legislative Decree No. 1,350, the re-entry restriction period was ten years. 76 Legislative Decree No. 1,350, Art. 54.a. 77 Regulations of Legislative Decree No. 1,350, Art. 200.4. 78 Ibid., Art. 212.2. 79 As discussed in the 9th Extended Session of MTIGM in June 2017. 80 Peruvian criminal procedure law provides for this form of detention (Art. 209 of the Code of Criminal Procedure). It can last up to four hours and it must be necessary. After four hours a court order must be issued. 81 Regulations of Legislative Decree No. 1,350, Art. 107.1. 82 Regulations of Legislative Decree No. 1,350, Art. 147. 83 Regulations of Legislative Decree No. 1,350, Art. 151.1. 84 Regulations of Legislative Decree No. 1,350, Art. 151.3. 85 Regulations of Legislative Decree No. 1,350, Art. 200.4. 86 Regulations of Legislative Decree No. 1,350, Art. 212. 87 Regulations of Legislative Decree No. 1,350, Arts. 200.4 and 201.2. 88 Regulations of Legislative Decree No. 1,350, Art. 197.3. 89 Regulations of Legislative Decree No. 1,350, Art. 199.1.

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90 Legislative Decree No. 1,350, Art. 66. 91 Regulations of Legislative Decree No. 1,350, Art. 136.1. 92 Constitution, Art. 2.2. 93 Wilfredo Ardito, “Patrones de la Discriminación en el Perú,” in Conferencias Descentralizadas Alfa. Grupos en Situación de Vulnerabilidad: Género y Discapacidad (Lima, Perú: PUC P, 2014), 5–16, https://idehpucp.pucp.edu.pe/wp-content/uploads/2015/03/ conferencias-descentralizadas-alfa-VF.pdf. 94 See: www.alertacontraelracismo.pe. 95 Legislative Decree No. 1,350, Art. 39.1. 96 Luisa F. Freier, “A Liberal Paradigm Shift? A Critical Appraisal of Recent Trends in Latin American Asylum Legislation,” in Exploring the Boundaries of Refugee Law: Current Protection Challenges, eds. JeanPierre Gauci, Mariagiulia Giuffré, and Evangelia Tsourdi (Leiden and Boston: Brill Publishers, 2015). 97 Law on Asylum No. 27,840; It should be noted that, as indicated by the law, there are two types of asylums: territorial and diplomatic. According to Art. 4, “The asylum granted within the frontiers of the State is called Territorial and that granted at the headquarters of the Diplomatic Missions, including the residences of the Chiefs of Mission, and in ships, airplanes or military camps of the country abroad, is considered Diplomatic. As long as the applicant’s situation is decided, they will enjoy, provisionally, the protection of the State.” 98 Freier, “A Liberal Paradigm Shift?” 99 Refugee Law No. 27,891, Chapter I I I . Entities Directly Involved in the Recognition and Treatment of Refugees. 100 Refugee Law No. 27,891, Art. 15. 101 Refugee Law No. 27,891, Art. 20. 102 Asylum Law Noo. 27,840, Art. 1. 103 Asylum Law No. 27,840, Chapter I I . Obligations and Rights of Asylees. 104 Refugee Law No. 27,891, Art. 25. 105 Asylum Law No. 27,840, Art. 12. 106 Constitution, Art. 201. 107 File No. 02744-2015-PC/TC. 108 Fifth Special Criminal Chamber for Trials with Free Prisoners of the Superior Court of Lima, Exp: 06488-2018-0-1801-JR-PE-05, Sec: MARTEL, Resolución Nro. S / N . 109 “Venezolanos en Perú ¿Cuál es el proceso judicial en el pedido de pasaporte?,” El Comercio, 18 October 2018, https://elcomercio.pe/peru/ venezolanos-peru-proceso-judicial-pedido-pasaporte-noticia-568428-noticia.

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110 “Venezolanos sí deberán presentar pasaporte para ingresar a Perú,” El Comercio, 17 October 2018, https://elcomercio.pe/peru/venezolanosdeberan-portar-pasaporte-ingresar-peru-noticia-568274-noticia. 111 “Exigencia del pasaporte a personas venezolanas, aspectos a considerer,” Instituto de Democracia y Derechos Humanos PUC P (IDEHPUC P), 17 December 2018, https://idehpucp.pucp.edu.pe/notas-informativas/ exigencia-del-pasaporte-a-personas-venezolanas-aspectos-a-considerar. 112 Currently, the member states of M ERCOS UR are Argentina, Brazil, Uruguay, Bolivia, and Paraguay. Venezuela was suspended from the bloc on 2 December 2016. Member states have specific obligations, stipulated in the Treaty of Asunción. These include the free circulation of goods, ­services, and productive factors between countries, through the elimination of customs duties and non-tariff restrictions on the circulation of merchandise and any other equivalent measure, among other requirements, for the purpose of building a Common Market. 113 Associated states are those members of the Latin American Integration Association (ALADI) with whom MERCOSUR holds free trade agreements and which subsequently request to be considered as such. Associated states are authorized to participate in meetings of various bodies of MERCOSUR that deal with issues of common interest. Currently, associated states include Chile, Colombia, Ecuador, and Peru. 114 The member countries of CAN are Bolivia, Colombia, Ecuador, and Peru. 115 Diego Acosta Arcarazo and Luisa F. Freier, “Regional Governance of Migration in South America,” in Handbook of Migration and Globalisation, ed. Anna Triandafyllidou (Cheltenham: Edward Elgar Publishing, 2018). 116 Migraciones (2009). Acuerdo sobre residencia para nacionales de los Estados parte del Mercosur, Bolivia y Chile. 117 C A N, Decision 504. 118 C A N, Decision 545. 119 C A N, Decision 583. 120 Supreme Decree No. 15-2017-RE, Art. 3. 121 In the I X Enlarged Session of the MTIGM, carried out in June 2017, the need for an additional regulation for the humanitarian visa was discussed, given the lack of procedures to access the humanitarian migration quality stipulated by legislation, according to Art. 29.2.k of Legislative Decree No. 1,350 and Art. 91 of the Regulations of Legislative Decree No. 1,350.

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8 The Legal Status of the Immigrant in International Law and the Inter‑American Human Rights System L a u r a G a r c ía - Ju a n

1 In t ro ducti on One of the pillars of a person’s legal status, regardless of their nationality or immigration status, is their guaranteed access to the rights provided for in their status. This issue takes on special importance when the rights of migrants are at stake, because these groups of people are more likely to encounter restrictions on their rights for purely administrative reasons. Rather than interpreting fundamental rights as the constitutional manifestation of human rights provided for, and protected, by a state, this chapter’s point of departure stems from the premise that fundamental rights should be understood as a priori, meaning as rights inherent to a person regardless of their nationality. However, when referring to immigrants, the prevailing tendency is to attribute these rights exclusively to those with the nationality of the state that regulates them.1 To achieve a genuine and effective attribution of fundamental rights for all people, regardless of their citizenship, a progressive denationalization of fundamental rights is necessary. Only once that has been achieved can states’ unequal attribution of human rights, a principal cause of inequality in migrant-receiving countries, be overcome, thus allowing subjective human rights to be transformed into objective fundamental rights.2

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The majority of Latin American countries have used a variety of methods to establish the social, democratic, and legal order of the state within their respective constitutions. These declarations list how these countries are governed by legal norms, all of which are carried out through state activity within the framework of their constitutions and the laws provided therein. Furthermore, these declarations imply that public power is owned, and exercised, by the will of the people through elective representation. The people control the work that elected ­officials perform and have the ability to directly intervene in decisionmaking processes, provided that the rights of minorities and the fundamental rights of all are not ignored. This argument also means that state activities must be directed toward ensuring decent living conditions, so as to mitigate existing social inequalities, and offering everyone equal opportunities to develop themselves to their fullest potential and be able to meet their own basic material needs.3 Given these considerations, it is necessary to inquire about the personal scope of validity regarding state order. For some time now, political scientists have put forward the idea that one of the constituent elements of the state is the city, or town settlement, which can be understood as a group of people who live within the limits of the state’s territory. This definition has often been used in various internal regulations to establish a subjective scope of human rights. However, in major declarations, pacts, treaties, and international agreements, the parameters of these rights have been extended to have universal validity, although, to be effective and enforced, they have been referred back to individual states.4 The widespread growth of migratory movements has led to the gradual increase in protections granted to non-nationals, as well as certain legal faculties and specific subjective rights. However, at present, several scholars suggest that citizens and foreigners of a given state are still not treated equally, even when foreigners hold a regular immigration status.5 This chapter describes the construction and interpretation of various rights that make up the legal status of the international immigrant based off the jurisprudence of the Inter-American Human Rights System (IA HR S). The scope of this description is limited to international immigrants and foreigners who reside in a country different than that of their nationality, in cases in which their status as nonnationals is associated with the violation of their rights. The legal status of immigrants due to other causes, such as refugees, asylum

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seekers, and internally displaced persons, falls outside the scope of the work presented here. This chapter begins with an overview of the international legal instruments that specifically address the rights of migrants and their unique treatment in the context of international human rights law. The following sections present an analysis of the legal precedents in which the Inter-American Court of Human Rights (IACtHR) has ruled on the human rights of migrants, with a special reference to international jurisprudence and case law that delves into the issue of undocumented migrants, or those with irregular status, and situating them in relation to the concept of vulnerability.

2 T h e U n iq u e N at u r e of I nternati onal In s t ru m e n t s f o r the Protecti on o f M ig r a n t s ’ Ri ghts Similar to other international human rights instruments, those pertaining to the protection of migrant rights are unique. Generally speaking, all treaties that require an act of approval, ratification, and acceptance, or adherence, or imply an exercise of sovereignty, must as a state then voluntarily assume a series of corresponding obligations. However, when a human rights treaty is approved, states that carry out any actions related to that treaty are subject to a legal framework. This framework obliges them to uphold certain measures for the common good, not in relation to other states’ parties but to the individuals subject to their state jurisdiction.6 All universal efforts to protect human rights are complemented autonomously and independently by regional protection systems, namely the European, African, and Inter-American systems, which are enforced by the individual states that comprise them. By voluntarily ratifying or adhering to treaties, pacts, and conventions, countries establish an international legal order of regional protection, which outlines a set of international responsibilities for its members. Thus, within the regional system of the Americas, the I ACtH R understands that modern human rights treaties, and, in particular, the American Convention on Human Rights (A C H R),7 are not multilateral treaties (in the traditional sense of the term) established so that states parties can mutually benefit. The I A C tHR points out that “its true purpose and raison d’être is the protection of the fundamental rights of human beings, regardless of their nationality, both vis-à-vis their own State

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and vis-à-vis the other contracting States.”8 In addition, human rights treaties are living instruments, whose interpretations must evolve and reflect the ideas and beliefs of contemporary society. Therefore, the incorporation of international human rights law into the domestic law of each individual country must be distinct from the incorporation of general international law.9 In response to the challenges presented by the hierarchy of international human rights treaties, some countries in the Americas have resorted to using the pro homine or pro persona principle, applying the regulation most beneficial to the person, regardless of the hierarchy granted by domestic law.10 This principle is defined as: the hermeneutical criteria that informs all the rights of human rights, by virtue of which one must resort to the broadest norm, or to the most extensive interpretation, when it comes to recognizing protected rights. Inversely, one must resort to the norm, or to the more restricted interpretation, when it comes to establishing permanent restrictions on the exercise of rights or their extraordinary suspension.11 The IA CtH R also reified its stance on this particular principle in several provisions, such as the Judgment of 5 July 2004, also known as Case of the 19 Merchants v. Colombia; Resolution No. 13 / 83 of 13 November 1981, in the matter of Viviana Gallardo and Others v. Costa Rica; and Advisory Opinion O C-5 / 85 of 13 November 1985, entitled Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism.12 Although the adherence to the pro homine principle is valid for international instruments directly linked to the human rights of migrants, the following section will shed light on two of the principal documents that feature these principles and refer specifically to people who relocate to other countries for employment purposes.13 In December of 1990, the General Assembly of the United Nations (U N ) adopted the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.14 This document extends the guarantee of human rights to all migrant workers, both documented and undocumented, without detracting from the recognition of additional rights of workers with regularized immigration status and their families. In this way, the convention clearly establishes the existence of universal human rights that are not

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conditional on immigration status. The document also contains provisions for the elimination of the exploitation of all migrants, as well as clandestine mobility. However, most of the state parties serve as the source of migratory flows, without constituting destination countries. Although these countries play a significant role in protecting migrants before they leave their territory and when they return, they have very limited power to influence migrants’ living and employment conditions in the countries of destination.15 Although we can confirm that, as a whole, the 1990 Convention had a positive effect, its treatment of workers in irregular situations is ambivalent.16 This ambiguity derives from the fact that states are required to ensure that this group receives dignified treatment, but not to grant them the same rights as immigrants who have been admitted through legally established procedures. Thus, state parties to the 1990 Convention are, in a sense, authorized to discriminate against undocumented immigrants in various aspects, such as the right to family unification, freedom of movement, social security, employment protection, and union membership.17 Relatedly, the International Labour Organization (ILO), which currently has 186 member states, in addition to the Cook Islands, has stressed the need to streamline its procedures for normative actions, technical cooperation, and research, so it can focus its attention on the plight of people with exceptional social needs, such as migrant workers, among others.18 In accordance with the principles and rights set forth in the ILO’s 1919 Constitution, as well as its 1944 Declaration of Philadelphia, all member states are committed to respecting, promoting, and implementing fundamental labour principles and rights. These include equality of opportunities and treatment, freedom of association, the right to collective bargaining, and the elimination of extreme forms of exploitation, such as forced labour and child labour.19 To conclude this section, it is worth clarifying that the protection, unique treatment, or special status, provided for by international human rights instruments, must also be contained within any treaty to which a state is party, without the express objective of protecting these rights. The I A C tH R has recognized that there are treaties that “are not about human rights,” but that, nonetheless, include genuine human rights.20 For example, the IACtHR required foreign detainees to be informed of their right to consular assistance from their state of nationality, as provided for in the Vienna Convention on Consular Relations. At the request of the Mexican government, Advisory

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Opinion OC-16 / 99 was issued on 1 October 1999, which established that this convention is not in and of itself a treaty on human rights, but rather recognizes a legitimate human right that must be included in the framework of due process.21

3 T h e R ig h t s o f In ternati onal Im m ig r a n t s in t he I AHRS The I A H R S is composed of two subsystems: 1) a normative body comprising a series of instruments that constitute the corpus iuris, established through the Organization of American States (OAS) member state resolution; and 2) an institutional system made up of two bodies created for the promotion and protection of human rights throughout the Americas, regardless of a person’s nationality, race, sex, etc. These bodies are the Inter-American Commission on Human Rights (IACHR) and the IACtHR. To achieve their objectives, both the OA S Charter and the A C HR have endowed the I ACH R with certain powers to fulfill their promotion and protection duties.22 Although the IA C tHR carries out promotional activities, it almost exclusively focuses on the duty of protection, yet in ways that are distinct from, and more limited in scope, compared with the I ACH R.23 To a greater or lesser extent, the I A H RS instruments most relevant to the protection and guarantee of the human rights of international immigrants are the American Declaration of the Rights and Duties of Man (A DR DM); the A C H R and its Additional Protocol in the Area of Economic, Social and Cultural Rights, also known as the Protocol of San Salvador; the Inter-American Convention to Prevent and Punish Torture (I A C P P T ); and the Inter-American Convention on the Elimination of All Forms of Discrimination Against Persons with Disabilities. The rights established in these international documents also apply to persons holding immigrant or foreign legal status.24 Paradoxically, despite the increase in human rights violations concerning international migrants in the Americas,25 the number of these cases presented to the I A H R S, throughout its thirty-five-year history, is in fact quite low.26 Yet, it should be noted that the reports and resolutions of the IACHR, as well as the judgments and advisory opinions of the IACtHR, highlight the fact that violations of the rights of international migrants and other foreign persons occur in many destination and transit countries across the Americas. In addition, despite issuing few pronouncements, these two institutions have largely shaped the

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content and scope of the human rights obligations of O A S states, because the jurisprudence of the IAHRS has the potential to not only transform legislation and practice, but also help ensure that these rights are effectively protected and guaranteed.27 The following section provides an overview of the various instances in which the I A C tH R addressed its pronouncements (judgments and advisory opinions) on the rights of migrants, as well as those pertaining to foreign persons, making special reference to the jurisprudence and case law relating to the rights of irregular or undocumented migrants. It is important to clarify that the advisory jurisdiction of the IA C tHR covers not only the state parties to the ACH R (twenty-three states at the time of publication), but the entire I AH RS , that is, the thirty-five OAS member states and signatories of the OAS Charter. An essential characteristic of the I A C tHR’s advisory jurisdiction is that the effect of its opinions extends beyond the ACH R and forms part of the corpus iuris of the O A S system. However, this expansive influence only pertains to the advisory jurisdiction of the IACtHR, and not to its contentious jurisdiction, since the latter requires both the ratification of the A C HR and the express acceptance of its competence. 3.1 Precedents in the Judicial Function of the IAC tHR In 1998, the IACtHR issued its first judicial resolution involving an alleged victim who was a foreigner, with the judgment Blake v. Guatemala.28 The judgment addressed the international responsibility of the state for its ineffectiveness in the investigation and punishment of those responsible for the apprehension, and subsequent death, of an American citizen, Nicholas Chapman Blake. In March 1985, Blake, a journalist, went to the village of El Llano, from Huehuetenango, accompanied by a photographer. In El Llano, the two were detained by a Civil Self-Defense Patrol and eventually murdered; they remained missing for seven years. Despite the preliminary objections filed by the Guatemalan government, the IACtHR declared itself competent to hear the case, because it was dealing with a presumed forced disappearance and because justice had still not been served, despite almost seven years having gone by since Mr Blake went missing. Also, actions taken by Guatemalan government agents came to light that suggested their complicit involvement in Mr Blake’s disappearance. However, the I A C tH R declared itself incompetent to hear the facts related to Mr Blake’s illegal detention,

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and resulting death, because these acts had occurred two years before Guatemala’s acceptance of the court’s jurisdiction. Both the U N Declaration on the Protection of All Persons from Enforced Disappearances, as well as the Inter-American Convention on the Forced Disappearance of Persons, were taken into consideration and applied in this case.29 In 2001, three years after that resolution, the IACtHR issued a judgment on a case concerning the international responsibility of the state for depriving the Peruvian nationality of Mr Baruch Ivcher-Bronstein, originally from Israel, and the resulting loss of the shares of his television channel.30 In May 1997, the Peruvian government had issued a decree modifying the country’s Law on Nationality, which allowed the state to cancel the nationality of naturalized Peruvians. Apparently, this decree was implemented in retaliation for a television channel, of which Bronstein was the main shareholder, airing programs that were critical of Peru’s executive branch. On this occasion, the IACtHR declared that, although it is accepted that determining and regulating nationality are the responsibility of each country, “the documented evolution of this subject shows that international law imposes certain limits on [State] discretion and that the regulation of nationality must not only concur with the competence of the State, but also the requirements of comprehensive protection of human rights.” In its judgment, the I A C tHR insisted that the right to a nationality means providing an individual with a minimum of legal protections for international relations, allowing them to establish links with a specific state, and recognizing that people can protect themselves against the arbitrary deprivation of their nationality.31 Holding a foreigner status also played a role in the Tibi v. Ecuador case,32 whose 2004 judgment established the international responsibility of the state for the illegal and arbitrary deprivation of freedom of French citizen Daniel David Tibi, as well as the conditions under which he was arrested and his subsequent maltreatment by authorities. Mr Tibi had been living and working in Ecuador as a trader of precious stones and Ecuadorian art. The International Criminal Police Organization (INTERPOL) agents of the Guayas province arrested him in September 1995, because he was allegedly involved in drug trafficking. From September 1995 until January 1998, authorities kept him under preventive detention, where he was tortured and threatened on several occasions by prison guards who forcibly sought to get him to confess.

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The victim’s status as a foreigner served as a determining factor for the IACtHR’s statement that an individual’s right to request consular assistance from their country “must be recognized and considered within the framework of minimum guarantees in order to provide foreigners with the opportunity to properly prepare their defense and have a fair trial.” While in detention, Mr Tibi was not notified of his right to communicate with a consular official from his country, which would have enabled him to procure the assistance recognized under Article 36 of the Vienna Convention on Consular Relations. Basing their decision on that article, the I A C tH R determined that the denial of consular access affected Mr Tibi’s right to a defence, which forms part of the guarantees of due process of law according to the ACHR.33 The resolution of the Tibi v. Ecuador case was intimately connected with an I A C tH R Advisory Opinion issued in 1999. That will be discussed in the following section. In July 2003, the IACHR submitted the case Yean and Bosico v. the Dominican Republic to the IACtHR.34 This case refers to the international responsibility of the state to deny the issuance of birth certificates, and the adverse consequences that this situation generated for the plaintiffs; ultimately, the I A C tH R ruled in favour of Dilcia Oliven Yean and Violeta Bosico Cofi (two girls of Haitian descent born in the Dominican Republic). The events began on 5 March 1997, when Violeta’s mother and the cousin of Dilcia’s mother appeared before the authorities of the Civil Registry of Sabana Grande de Boyá (Dominican Republic) to request the late registration of Violeta and Dilcia’s births; their requests were subsequently denied despite them presenting the necessary documents. The Dominican Republic has established the principle of ius soli, which attributes nationality at birth, so the refusal to accept Violeta and Dilcia’s late birth registration forced the girls to remain in a perpetual state of illegality and social vulnerability, because they were, in effect, stateless from the date of their family members’ attempted application for registration until 25 September 2001. In its judgment, the I A C tH R asserted that the importance of nationality is derived from the fact that it serves as a legal-political link, which binds a person to a state, allowing an individual to acquire and exercise the rights and responsibilities of belonging to a political community. That functions as a prerequisite for the exercise of certain rights. It is worth clarifying that the court’s affirmation is made according to an immigration status perspective, reinforcing the notion that the circumstances

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outlined above cannot be a condition for the granting of nationality. That means that one’s migration status cannot constitute a valid justification for depriving one’s right to nationality, or for the enjoyment and exercise of the rights that are derived from that nationality.35 More recently, in a 2010 case that took place in Panama, the immigrant’s status was a key factor that influenced the judgment. The case refers to the international responsibility of the state for detaining Ecuadorian national Jesús Tranquilino Vélez Loor on grounds of immigration violation, and for the lack of due process and subsequent poor conditions of the detention centre.36 Mr Vélez Loor was arrested in November 2002 at a police post in Darien Province (Panama) for allegedly not carrying the necessary documentation to remain in the country. He was transferred to a public jail and in December was sentenced to two years in prison for having violated the terms of Panama’s Decree-Law No. 16, entitled “On Migration.” However, at the time, Mr Vélez Loor was not made aware of this resolution, and, in September 2003, he was deported to Ecuador. Upon arrival to his country of origin, Mr Vélez Loor claimed to have been a victim of torture and ill treatment during his incarceration in Panama. Although we will revisit Mr Vélez Loor’s case later on in the chapter, when we discuss the vulnerability of immigrants with irregular status, we argue that the I A C tH R ’s judgment referred to equality before the law, equal protection before the law, and non-discrimination, acknowl­ edging that these principles had been inserted into the domain of ius cogens in the current stages of international law.37 The I A C tH R pointed out that states cannot themselves discriminate or allow ­discriminatory environments that are detrimental to migrants, but noted that states can, in fact, grant differential treatment to documented migrants, relative to undocumented migrants, as well as between migrants and nationals, as long as this difference of treatment is reasonable, objective, proportional, and does not violate human rights. On these grounds, the I A C tHR found that the state had failed its obligation to guarantee migrants’ right of access to justice without discrimination, as established in Articles 8.1 and 25 of the ACH R. In its last three contentious cases related to migrant persons that have been resolved, the IACtHR has established its position clearly on the prohibition of collective expulsions of foreigners, in accordance with the ninth subparagraph of Article 22 of the ACHR. This ruling has also influenced the assessment of other rights that have been violated as a result of a migrant’s deportation. Examples of these rights and

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guarantees include: nationality, personal integrity, personal freedom, asylum, judicial protection and guarantees, right of movement and residence, protection of the family, and rights of children, among others. This section focuses on collective expulsions, because it is a common denominator in the following three cases and because it is a type of sanction that can only be applied to foreigners. The collective expulsion sentences were issued in the cases of Nadege Dorzema et al. v. the Dominican Republic (2012);38 the Pacheco Tineo Family v. the Plurinational State of Bolivia (2013);39 and Expelled Dominicans and Haitians v. the Dominican Republic (2014).40 The first case concerns the international responsibility of the state for the death of and damages to the integrity of Haitian immigrants caused by Dominican military agents, and the failure to investigate these incidents in domestic courts. The second case concerns the expulsion of a Bolivian family of Peruvian origin, who, years earlier, had renounced their status as refugees and whose expulsion was due to their entrance into the country as irregular migrants, as well as for having an outstanding arrest warrant in Peru. The third case declared the Dominican Republic responsible for violating the prohibition on the collective expulsion of foreigners, as recognized in Article 22.9 of the ACHR, and failing to respect migrant rights by discriminating against a group of persons of Haitian origin.41 In those resolutions, the IACtHR considered that, within the framework of the I A HR S, the “collective” nature of an expulsion implies an arbitrary decision that overlooks an objective analysis of the individual circumstances of each foreigner. In addition, the court established that, for the state to implement its migration policy, it must guarantee that expulsion or deportation proceedings are carried out, especially those related to the rights of due process and judicial protection. The IACtHR also stated that the ban on the collective expulsion of foreigners is a constraint that functions independently of an immigrant’s legal status, since the ban on arbitrary expulsion would not be fulfilled by a law or a decision that lacks an evaluation of the conditions of each individual person. On several occasions, the IACHR has also ruled on collective expulsions of foreigners and has established that certain guarantees must be provided. These include providing legal assistance during the administrative sanctioning procedures; the right to defence, which entails ample time to be made aware of, and understand, the charges; being given a reasonable period of time to prepare a defence against

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accusations; as well as the right to gather and present relevant evidence.42 Given that precedent is extremely important, Chapter V of the 1991 Annual Report on Human Rights of the I ACH R is devoted to the plight of Haitians in the Dominican Republic. The report established that an expulsion rises to the level of “collective” when the decision to expel is based not on the merits of the person from an individual case, but rather on considering a group of persons as a whole, even if the group in question has few members. Following this logic, the I A C HR concluded that an expulsion would be considered collective, not by the number of people expelled, but by the absence of a procedure that takes into consideration the particular situation of each foreigner. In this same report, the IACHR observed that the expulsion of persons of Haitian origin born in Dominican territory, and the destruction of documents that would have enabled their rights to be verified, constituted a violation of the right to nationality outlined in Article 20.3 of the A C H R .43 3.2 Precedents in the Advisory Function of the IAC tHR Since its inception, the I A C tH R has issued twenty-five Advisory Opinions, the first in 1982 and the most recent in 2018.44 Overall, only four of them are directly related to the human rights of migrants and foreigners. There is also one advisory opinion connected to the institution of asylum and its recognition as a human right.45 This section assesses three of the I A C tH R ’s advisory opinions about the evolution of the term “vulnerable group” within systems for the protection of human rights. The fourth, and final, section of this chapter will address the legal status and rights of undocumented migrants. In 1984, at the request of the Costa Rican government, the IACtHR used its advisory function for the first time by asserting itself in a case relating to the right to nationality.46 More specifically, Costa Rica inquired about the incompatibility of certain Articles of the ACHR and reforms that had been proposed in Articles 14 and 15 of its Constitution. These reforms sought to increase the required period of official residence in-country before being allowed to apply for Costa Rican nationality, and incorporate certain conditions, such as knowledge of the Spanish language, Costa Rican history, and cultural values. The IACtHR determined that Article 20 of the ACHR does not place limits on states’ power to require that migrants become naturalized citizens, and that states have complete discretion to establish

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reasonable requirements for the acquisition of nationality, such as knowledge of the national language, history, and values. In addition, the court established that neither constitutional reforms that impose different requirements depending on the nationality of the applicant, nor privileging Central Americans, Ibero-Americans, and Spaniards by birth, qualified as discriminatory. However, the I ACtH R did find that Costa Rica’s constitution was incompatible with Articles 17.4 and 24 of the A C H R , and thus discriminatory, because it established preferential conditions for naturalization through marriage for the benefit of only one of the spouses.47 As the reader will recall, the preceding section referenced the court’s second advisory opinion, which addressed foreigners’ right to receive consular assistance within the framework of the guarantees of due legal process.48 In response, the Mexican government petitioned the high court to clarify certain aspects that had come up in the many bilateral efforts made in favour of various Mexican nationals who were not informed, in a timely manner, of their right to communicate with their country’s consular authorities, and were subsequently tried and sentenced to death in ten US states. The second advisory opinion references various treaties concerning the protection of human rights in US states, according to the provisions of Article 36 of the Vienna Convention on Consular Relations, and, more specifically, of the International Covenant on Civil and Political Rights, the Charter of the OA S, and the A D R D M, all of which also relate to the ACH R. As discussed above, the IACtHR concluded that distinct treatment, or special status, provided by international human rights instruments must also be extended to those contained in any treaty to which a state is party, even if their express objective is not the protection of human rights. Thus, non-compliance with a foreign detainee’s right to information, recognized in Article 36.1.b of the Vienna Convention on Consular Relations, affects the guarantees of due legal process, which, in the above case, resulted in the imposition of the death penalty. In the terms outlined in human rights treaties, this qualifies as a violation of the right to not be “arbitrarily” deprived of life, which constitutes a violation of the international responsibilities of the state and, ultimately, is incumbent upon the state to repair.49 In 2003, the IACtHR issued an advisory opinion on the legal status and rights of undocumented migrants (which will be addressed in the following section). In 2014, it introduced an advisory opinion on the rights and guarantees of migrant children and persons in need of

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international protection, as requested by Argentina, Brazil, Paraguay, and Uruguay.50 Specifically, the I A C tH R was asked to address the obligations of states in relation to proposed measures regarding children and their immigration status, as well as that of their parents, in light of Articles 1.1, 2, 4.1, 5, 7, 8, 11, 17, 19, 22.7, 22.8, 25, and 29 of the ACHR; Articles 1, 6, 8, 25, and 27 of the ADRDM; and Article 13 of the IA C P P T . The latter opinion served as an urgent reminder for the need to adopt a human-rights-minded approach to migration policies and international protection, assuming the interrelation and convergence between these different branches of international law. It also pointed out that international protection should be understood as offered by a state to a foreign person because their human rights are threatened or violated in their country of nationality, or habitual residence, and also owing to their inability to obtain due protection because services are not accessible, available, or effective. Therefore, the court held that, based on international human rights obligations, this protection should extend not only to stateless persons, refugees, and asylum seekers, but also to any foreign person.51

4 Ir r e g u l a r Immi grants as   a V u l n e r a b l e Group Irregular migration is often associated with persons travelling via various clandestine routes, crossing from one country to another, and enduring many risky situations that endanger their lives and physical safety along the way.52 These migrants face obvious conditions of vulnerability, because their dignity and human rights are often undermined throughout the process. Thus, for people who travel without necessary administrative authorizations, their irregular migration status renders them highly vulnerable to abuses and violations of their rights. Upon reaching their country of destination, migrants, because of their irregular status, often refuse to denounce the abuses they have suffered during the journey.53 Overall, it is important to focus on the concept of vulnerability and how this term is attributed to groups of international migrants with irregular immigration status. The parameters of this concept constitute a topic of increasing relevance for human rights protection systems, and of growing interest among scholars, because collective debates

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on the meaning of vulnerability open up a range of possibilities and outcomes, which may potentially lead to the acceptance of more robust notions of equity.54 4.1 Differing Conceptualizations of “Vulnerable Group” Everyone has inherent rights and is deserving of opportunities for self-development under conditions of equality and equity. Likewise, individuals, or groups of people, should not be discriminated against due to their ethnicity, gender, age, sexual preference, or any other vectors of difference. This principle is broad in scope and is based on interpretations that see the right to not be discriminated against as a sort of symbol and as a juridical and philosophical basis of equity as justice; yet, in reality, it is not an absolute principle. In fact, this principle is based on the notion of equality as a scenario in which the granting of equal treatment to all people in a similar situation, or circumstance, is possible, which leads to the criterion of “differentiation” when dealing with people who share a particular situation. To this end, certain exemptions have been developed that should be permitted not only by law, but also on moral and solidarity grounds. That would allow designated persons, or groups, with specific characteristics, who already face discrimination and exclusion and live in situations of vulnerability, to enjoy certain advantages, or opportunities, justified by the principle of equity.55 The European Court of Human Rights (E CtH R) used the concept of vulnerability for the first time for the Romani people (pejoratively known as Gypsies) in five simultaneous cases against the United Kingdom (U K ). The five judgments, issued on 18 January 2001, resolved the claims made by the family of Sally Chapman and four other Romani families, who denounced the U K for prohibiting them from installing caravans on their own property, citing the alleged violation of Articles 8 and 14 of the European Convention on Human Rights. The provisions in these articles refer to the right to respect for private and family life and to the prohibition of discrimination. Although the E C tH R ultimately rejected the family’s petition, it referred to the Romani people as a specific type of disadvantaged and vulnerable minority group with special protection needs.56 In the  November 2007 case of D.H. and Others v. the Czech Republic, which also involved the Romani people, the E CtH R sided

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with the plaintiffs and concluded that their right to not be discriminated against had been violated. The court asserted that the Romani’s characterization as a minority group was derived from “their vicissitudes and their perpetual uprooting, the gypsies constitute a disadvantaged and vulnerable minority with a particular character. Therefore, they are in need of special protection, as indicated by the Court in its previous jurisprudence.”57 More recently, the concept of vulnerability has gained strength in the European Human Rights System, as evidenced by the E C tH R ’s recognition of people with certain types of mental disability, asylum seekers, and people living with H I V  / A I D S , as vulnerable groups. However, it remains unclear what unites these varied groups under the concept of vulnerability, since the E C tH R has not fully developed the criteria to determine if groups qualify for this status. For each case, the court bases its arguments on European and international human rights reports and resolutions. However, this practice has confirmed characteristics of vulnerability that are already established, rather than discerning and demarcating what characteristics are necessary for a group to be considered vulnerable. According to the E C tH R , the notion of a vulnerable group would consist of three main characteristics: relational, personal, and based on detriment or damage. The E C tH R considers that vulnerability is located not only in the individual, but also within their social, historical, and institutional circumstances. Therefore, the notion of a vulnerable group is relational, since a person’s individual vulnerability is contingent on their broader social or institutional environment.58 As a group or category, international immigrants in irregular administrative situations possess a relational element, because the cultures to which they belong often carry pejorative connotations, which are used to justify the differences in equality between nationals and nonnationals. Irregular immigrants face stereotypes, prejudices, racism, xenophobia, bigotry, and institutional discrimination. Social hierarchies, where immigrants occupy a position inferior to that of nationals, has helped to justify varying degrees of impunity in cases that involve violating the human rights of newly arrived immigrants. This impunity largely confirms immigrants’ impotence in the face of injustice, harm, and discriminatory treatment, and reinforces their vulnerability. Most important, we must understand that vulnerability is not a characteristic necessarily associated with people who leave their home countries to seek a better life elsewhere. Nor is it an inherent

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characteristic of the racial or ethnic makeup of a migrant’s country of origin, or directly related to a person’s administrative status, or the way in which they entered their country of destination. We must not confuse the causes of vulnerability with the causes of immigration, since, in reality, immigration is motivated by a combination of endogenous and exogenous factors, both in the country of origin and in the country of destination.59 4.2 The Meaning of Vulnerability According to the IAC tHR Since its first judgment on merits, issued in July 1988 in the case Velásquez-Rodríguez v. Honduras,60 the IACtHR has been specifically interested in different forms of exclusion within states, particularly those that affect individuals, or groups of people, at risk. To this end, and regarding Indigenous populations, the court has, on various occasions, referred to scenarios that exacerbate vulnerability, such as the process of administration of justice. This intensification of vulnerability resulted from factors beyond the subject’s control, such as a lack of Spanish interpreters, lack of resources to hire a lawyer, or the inability to travel to the courthouse. It is important to note that when the IAHRS addresses the concept of a vulnerable subject, no special distinction is made between the individual and the group. Both the IACHR and the IACtHR apply their analysis of vulnerability equally to individuals and groups, which they carry out on a case-by-case basis, since some groups have been accepted as holders of conventional rights. Thus, the rights of Indigenous and tribal peoples are treated complementarily for both the individuals that make up the group, as well as for the group itself.61 For the IACtHR, the concept of vulnerability is a direct result of the fact that, in Latin America, rights and obligations are not equally distributed across all members of society, at least not in practice. In other words, although states ostensibly guarantee equal access to rights and distribution of public resources, in reality access remains largely dependent on socio-economic factors, such as gender, race, ethnicity, geographic origin, class status, or age. The court’s rulings, similar to those of the European System, contend that all people in situations of vulnerability are entitled to special protection, which takes into account the special obligations to respect and guarantee human rights that states must fulfill. Meaning, states should not only refrain from violating the rights of individuals or groups, but must also adopt proactive

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measures based on individuals’ needs regarding the protection of their rights, either due to their personal circumstances or the situation in which they find themselves. In fact, analyzing one’s ability to access conventional rights is the initial assessment of vulnerability and one of the most important points of reference of the non-­discrimination clauses of Articles 1.1 and 24 of the ACHR.62 The existence of stereotypes is another factor that strongly influences the configuration, and meaning, of vulnerability, as well as its being attributed to certain minorities. These stereotypes may be considered to be causes of vulnerability once they begin to increase certain groups’ sensitivity and exposure to the threat of the violation of their rights. The IACtHR has established that stereotypes hinder vulnerable groups’ integration into dominant society, and facilitate human rights violations being committed with impunity against them. As for international immigrants, “cultural prejudices” (due to ethnicity, xenophobia, racism, etc.) are understood as factors that reinforce, and reproduce, conditions of vulnerability. In this sense, the court’s advisory opinion on the legal status and rights of undocumented migrants is emblematic, as will be explained in the next section. Regarding immigrants, the IACtHR has always recognized that both de facto (structural inequalities) and de jure circumstances (inequalities before the law between nationals and non-nationals) serve as breeding grounds of vulnerability, and that both types of circumstances shape immigrants’ access to public resources. Migrants often find themselves in especially unique situations of vulnerability, as both subjects of human rights in individual situations of deprivation, and as possessing inferior social status compared with non-migrant populations. Moreover, their vulnerability increases when immigrants are in a situation of administrative irregularity, which implies greater legal precariousness and increases the risk of their labour rights, judicial guarantees, and right to due process being violated.63 4.3 Advisory Opinion OC -18/03 The most emblematic resolution put forth by the I AH RS , where the IACtHR refers to the legal status of immigrants in situations of administrative irregularity, is Advisory Opinion OC-18 / 03 entitled “Juridical Condition and Rights of Undocumented Migrants,”64 which was issued in 2003 at the request of the United Mexican States. The consultation deals with the deprivation of migrant workers’ access to,

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and exercise of, certain labour rights, and their compatibility with OAS member states’ obligation to guarantee the principles of equality before the law, non-discrimination, and equal and effective protection of migrant workers through laws enshrined in international instruments for the protection of human rights. This opinion also addresses the effects of these three principles on the progressive development of international human rights law and their codification. The United Mexican States invoked the framework outlining the principle of legal equality enshrined in Article I I of the A D R D M , Article 24 of the A C H R , Article 7 of the Universal Declaration of Human Rights (UDHR), and Article 26 of the International Covenant on Civil and Political Rights (ICCPR), to pose two concrete questions to the court. The first question asked whether an American state can adopt labour legislation that allows detrimental treatment toward undocumented migrant workers compared with legal residents, or citizens. The logic behind this query derived from the fact that the condition of migrant workers, by definition, prevents them from enjoying such rights. The second question asked whether Articles 2.1 of the U D H R , Article II of the ADRDM, Articles 2 and 26 of the ICCPR, and Articles 1 and 24 of the ACHR establish that a foreigner must be residing legally in the territory of an American state, as a necessary condition for a state to respect and guarantee their rights and freedoms, as outlined in those provisions. Similarly, the I A Ct H R was asked, given the preceding inquiry and based on the undocumented condition of migrant workers, whether being deprived of one or more labour rights should be considered compatible with the duties of an American state to guarantee the non-­discrimination and the equal and effective protection of the law imposed by international provisions.65 Regarding the application of the principle of equality and non-­ discrimination to undocumented migrants, the I A C tH R ’s Advisory Opinion OC-18 / 03 recognizes the fact that migrants are, at various points, immersed in an environment of rejection, contempt, and stigmatization, based on social prejudice and “racial or cultural intolerance, depending on their foreign origin, race, economic status, legal status, ethnicity, age, gender, and eventually a disability condition.”66 The court concludes that discrimination constitutes a central cultural element that impedes migrants’ social and cultural integration, and that discrimination can even constrain the most fundamental element of human existence: the right to life. For this reason, discrimination,

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as opposed to economic factors, often plays a significant role in the hardships experienced by immigrants.67 In that decision, the IACtHR points out that the respect and guarantee of equality and non-discrimination does not depend on a person holding regularized administrative status in a specific country. Therefore, each state must ensure these guarantees to all their citizens as well as foreigners residing in their territory. This does not mean, however, that actions cannot be initiated against immigrants who fail to comply with a state’s established laws. As the court stresses, it is of the utmost importance for states to respect human rights, and guarantee that every person in their territory has the ability to exercise these rights free of discrimination based on their regular or irregular status, ethnicity, gender, age, sexual preference, or any other vectors of difference or on other causes mentioned in the previous sections.68 In the case of Vélez Loor v. Panama, the IACtHR referred specifically to the vulnerability of immigrants in irregular administrative situations. In its 2010 judgment, the court established that this group is among the most exposed to perceived, or real, violations of their rights, because they suffer from a great lack of protection and inferior levels of access to public resources, compared with nationals or legal resident foreigners. At the same time, the court admitted that the condition of vulnerability has an ideological dimension, whereby each state understands the concept against different historical backdrops, which, in turn, are maintained by de jure and de facto circumstances. In Advisory Opinion O C -18 / 03, the I A C tH R also declared that human rights violations committed against undocumented immigrants have often gone unpunished, owing to the existence of cultural prejudices, discrimination of various kinds, and a lack of access to structures of power, as well as normative and factual impediments that make accessing justice unattainable for these people. In response to this situation, the court asserted that, when adopting measures that affect migrants, states must respect and guarantee their human rights without discriminating based on immigration status. Thus, taking as an example Article 22.6 of the ACHR, which outlines specific protections against expulsion, it should be understood that although the Article refers expressly to foreigners in a regularized administrative situation within a state’s territory, that does not mean that persons who have entered illegally, or remain in the country beyond the time allowed, cannot enjoy all the guarantees and rights accorded to human beings.69

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5 C o n c l u s i ons The rights of transnational migrants, enshrined in the various international and inter-American instruments of protection, are not being strictly respected, protected, or guaranteed by IAHRS’s member states. However, the legal pronouncements discussed in this chapter reflect the progress that this regional system is making toward developing new rights and concepts: compensating for the injustices inflicted upon groups of peoples and building new legal foundations that are helping to make visible the problems faced by immigrants in their legitimate search for a more dignified life. Both the IACtHR and the IACHR have stressed the importance of guaranteeing the rights enshrined in the ACHR, because these rights constitute a minimum level of respect, while simultaneously insisting that immigrants should be considered rights-holders, and not merely objects of protection, in accordance with contemporary international human rights legal regulations. The judgments and advisory opinions of the IACtHR, and the resolutions of the IACHR, have helped set guidelines for effectively applying international norms pertaining to the human rights of migrants, while also providing an enormous potential for their interpretation in relation to the growing number of cases. Although concern for the human rights of migrants and their families has not been a significant priority for the various bodies of IAHRS, we can affirm that interest in this theme has grown, commensurate with the increasing migration flows to Latin American countries, which, until recently, had been accustomed to sending, but not receiving, migrants. Fortunately, these legal frameworks are constantly evolving, and, as a result, it is foreseeable that in the coming years the rights of so-called economic migrants will also evolve – allowing states and societies to understand and accept that their presence clearly contributes to countries’ cultural and economic development. As seen throughout this chapter, the IACHR and the IACtHR have made pronouncements on various unfortunate occurrences and scenarios in which migrants’ non-national status has placed them in a situation of vulnerability and directly influenced the violation of their rights. Relatedly, in most instances, individual states’ immigration control policies and practices have been responsible for the greatest number of cases of migrant rights violations. Up until now, legal systems have developed fairly extensive forms of judicial protection of personal

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liberty and due process for migrants. Yet there is still much work to be done to establish provisions to guarantee the freedom of circulation and residence, as well as a migration control procedure that stringently respects the human rights of people who have migrated to a foreign country for work purposes under irregular administrative conditions. The IAHRS’s different bodies have, on the one hand, advised on the protection of immigrants’ right to nationality, upon deciding to be naturalized in the state in which they permanently reside, or where their children were born, as well as opined on the right to due process and the violation of other rights, resulting from distinct treatment of nationals compared with foreigners. On the other hand, it is evident that legal frameworks have already begun to take into account the principle of equality and non-discrimination before the law based on migration status and the protection of labour rights. The processes and factors highlighted throughout this chapter have helped reveal the plight of migrants in relation to international laws developed in the IAHRS. The states that comprise this regional system, as well as national-level policy-makers, would do well to apply the standards established in the I A HR S’s legal frameworks, not only by making changes to their internal migration policies and practices, but also via reforms to normative frameworks and strategic training programs for officials and functionaries. If these states can achieve such measures on behalf of migrants, akin to the strides made to protect other vulnerable groups such as Indigenous peoples, the measures will serve as a foundation on which the effective protection and promotion of migrants’ fundamental rights throughout the region can be built.

Not e s



This chapter draws from the research project entitled “Exploring new avenues in comparative migration law that foster citizen coexistence and democratic values,” led by the Law Research Group (GR ID) at the Universidad Pontificia Bolivariana (ref. 069C-04/18-37).   1 Ignacio Gutiérrez Gutiérrez, Dignidad de la Persona y Derechos Fundamentales (Madrid: Marcial Pons, 2005).   2 Jorge A. Bustamante, “Immigrants’ Vulnerability as Subjects of Human Rights,” The International Migration Review 36, no. 2 (2002).   3 Rafael F. de Asís Roig, Sobre el Concepto y el Fundamento de los Derechos: Una Aproximación Dualista (Madrid: Dykinson, 2001).

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  4 Rafael Aguilera Portales and Diana R. Espino Tania, “Fundamento, Garantías y Naturaleza Jurídica de los Derechos Sociales ante la Crisis del Estado Social de Derecho,” Revista Telemática de Filosofía del Derecho no. 10 (2006/2007).   5 Francisco J. de Lucas Martín, Ángeles Solanes Corella, and Salomé Peña, Inmigrantes: una Aproximación Jurídica a sus Derechos (Alzira, Valencia: Germania, 2001).   6 Agustín Grijalva Jiménez, “Derechos Humanos de Inmigrantes Internacionales, Refugiados y Desplazados en Ecuador,” Revista de Derecho Foro no. 6 (2006).   7 The American Convention on Human Rights (A C HR ), also known as the Pact of San José, was signed at the Special Inter-American Conference on Human Rights, which was held in San José, Costa Rica on 22 November 1969.   8 Inter-American Court of Human Rights (IA C tHR ), Advisory Opinion O C -2/82 of 24 September 1982, on “The Effect of Reservations on the Entry into Force of the American Convention on Human Rights (Arts. 74 and 75),” para. 29.   9 Carlos Ayala Corao, “La Jerarquía Constitucional de los Tratados Relativos a Derechos Humanos y sus Consecuencias,” in Derecho Internacional de los Derechos Humanos. Memoria del VII Congreso Iberoamericano de Derecho Constitucional, ed. Ricardo Méndez Silva (Mexico City: U N AM , 2002). 10 Guillermo R. Moncayo, “Criterios para la Aplicación de las Normas Internacionales que Resguardan los Derechos Humanos en el Derecho Argentino,” in La Aplicación de los Tratados Sobre Derechos Humanos por los Tribunales Locales, eds. Martín Abregú and Christian Courtis (Buenos Aires: Editores del Puerto, 1997). 11 Mónica Pinto, “El principio Pro Homine. Criterios de Hermenéutica y Pautas Para la Regulación de los Derechos Humanos,” in La Aplicación de los Tratados Sobre Derechos Humanos por los Tribunales Locales, eds. Martín Abregú and Christian Courtis (Buenos Aires: Editores del Puerto, 1997). 12 The literalness of the texts that allude to the pro persona principle in the three referenced issues are the following: “[T]he rights must be analyzed according to the object and purpose of the A C HR , which is the effective protection of the human person, that is, a pro persona interpretation must be made” (I ACtHR, Case of the 19 Merchants v. Colombia, Merits, Reparations, and Costs, Judgment of 5 July 2004, Series C, No. 109, para.  173); “Consequently, the equilibrium of the interpretation is

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obtained by orienting it in the most favourable sense to the addressee of international protection, provided that this does not imply an alteration of the system” (I ACtHR, Case of Viviana Galardo and Others v. Costa Rica, Resolution No. 13/83, 13 November 1981, Series A, No. 101, para. 16); ”Consequently, if the ACHR and another international treaty are applicable to the same situation, the most favourable norm for the human person must prevail” (I ACtHR, Compulsory Membership in an Association Prescribed by Law for the Practice of Journalism, Advisory Opinion O C -5/85, 13 November 1985, Series A, No.5, para. 52). 13 In the normative repertories of the regional human rights systems there is no specific treaty, covenant, or convention on the rights of migrants and foreigners. Interestingly, within the framework Inter-American Human Rights System (I AHRS ), it is worth mentioning the Convention on the Status of Aliens, adopted in Havana, Cuba on 20 February 1928. The text consists of nine articles and is still valid, with Mexico having given notice of its withdrawal of reservation from Art. 6, on the expulsion of foreigners, in July 2014. 14 United Nations (UN), International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, Adopted by the UN General Assembly via Resolution No. 45/158, 18 December 1990. 15 Of the thirty-five current member countries of the Organization of American States (OAS ), the following are states parties to the 1990 Convention: Argentina (2007), Belize (2001), Bolivia (2000), Chile (2005), Colombia (1995), Ecuador (2002), El Salvador (2003), Guatemala (2003), Guyana (2010), Honduras (2005), Jamaica (2008), Mexico (1999), Nicaragua (2005), Paraguay (2008), Peru (2005), Saint Vincent and the Grenadines (2010), Uruguay (2001), and Venezuela (2016). It should be noted that in July of 2014, Mexico withdrew its reservation to Art. 22.4, because limiting foreigners’ right to challenge an expulsion order and request suspension of expulsion conflicted with provisions of Art. 33 of the Mexican Political Constitution, according to its 2011 reform. Chile is the only country that has formulated a reservation against Art. 22.5, which allows an immigrant to request compensation from the state after a fulfilled deportation order has been annulled. Of all these countries, only Uruguay, Guatemala, and Mexico have expressly recognized the competence of the U N Committee on the Protection of the Rights of All Migrant Workers and Members of their Families. Argentina, El Salvador, and Venezuela made their respective reservations to Art. 91.2 of the convention on the obligation to submit to arbitration any inter-state dispute that

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cannot be resolved through negotiation. In April 2017, Venezuela notified the O A S of its denunciation of the Charter of the OA S, which would have led to Venezuela’s withdrawal from the O A S effective two years from the date of notification. During the 2019 Venezuelan presidential crisis, the president of the National Assembly of Venezuela, Juan Guaidó, sent a ­letter to the OAS Secretary General annulling the previous denunciation. He expressed his desire for Venezuela to remain a member of the OA S, while the National Assembly designated a special envoy, who, in turn, was acknowledged as Venezuela’s delegate in April 2019; Patrick A. Taran, and Gloria Moreno-Fontes Chammartin, “Getting at the Roots: Stopping Exploitation of Migrant Workers by Organized Crime,” Working Papers of Perspectives on Labour Migration, no. 1 (2013). 16 Encarnación La Spina, “Convención Internacional sobre la Protección de los Derechos de Todos los Trabajadores Migratorios y de sus Familiares: Alcance y Limitaciones,” Derechos y Libertades, no. 28 (2013). 17 Boaventura de Sousa Santos, Sociología Jurídica Crítica: Para un Nuevo Sentido Común en el Derecho (Madrid: Trotta, 2009). 18 María Ángeles Cano, “Protección Internacional de los Derechos Humanos de los Trabajadores Migratorios,” Persona y Derecho 63, no. 2 (2010). 19 Francisco J. De Lucas Martín, “Algunas Tesis Sobre el Desafío que Plantean los Actuales Flujos Migratorios a la Universalidad de los Derechos Humanos,” in Una Discusión Sobre la Universalidad de los Derechos Humanos y la Inmigración, ed. Ignacio Campoy Cervera (Madrid: Dykinson, 2006). 20 Manuel Enrique Ventura Robles, Estudios sobre el Sistema Interamericano de Protección de los Derechos Humanos, Tomo II (San José, Costa Rica: Corte Interamericana de Derechos Humanos e Instituto Interamericano de Derechos Humanos, 2011). 21 I A C tH R , Advisory Opinion OC-16/99 of 1 October 1999, on “The right to information on consular assistance within the framework of due process guarantees.” 22 The Inter-American Commission on Human Rights (IA C HR ) works toward protecting human rights by receiving complaints of possible violations, preparing reports and recommendations for states, and conducting in loco visits. In 1996, the IACHR decided to create the Rapporteurship on Migrant Workers and Members of their Families, in response to the serious situation faced by migrants in various countries on the continent. In 2012, the I A C HR renamed it as Rapporteurship on the Rights of Migrants. 23 Augusto Guevara Palacios, Los Dictámenes Consultivos de la Corte Interamericana de Derechos Humanos (Barcelona: J.M. Bosch Editor, 2012).

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24 Of all these legal instruments, we only find literal references to foreign persons in Arts. 27 and 38 of the American Declaration of the Rights and Duties of Man (A D RDM ) and Art. 22 of the ACHR ; (Palacios Sanabria, 2012). 25 Comisión Económica para América Latina y el Caribe (C EPA L), Migración Iinternacional, Derechos Humanos y Desarrollo (Santiago de Chile: United Nations, 2006). 26 There are twelve legal precedents in the whole trajectory of the IACtHR that refer to migrants and foreigners, which are analyzed in this chapter. These precedents address violations of certain rights and principles, such as circulation and residence, asylum, nationality, equality, and non-discrimination, guarantees against deprivation of liberty, guarantees against expulsion, among others, which can be grouped into five thematic groups: 1. Detention for purposes of immigration control and expulsion; 2. Asylum; 3. Legal assistance and due process; 4. Migrant children; and 5. Migrant workers. 27 Cecilia Medina Quiroga, La Convención Americana: Teoría y Jurisprudencia. Vida, Integridad Personal, Libertad Personal, Debido Proceso y Recurso Judicial (San José: Centro de Derechos Humanos, Universidad de Chile, 2005). 28 I A C tH R , case of Blake v. Guatemala, Background, Judgment of 24 January 1998, Series C, No. 36. 29 Karlos A Castilla Juárez, “La Protección de los Derechos de las Personas Migrantes Extranjeras en Treinta y Cinco Años de Jurisdicción de la Corte Interamericana de Derechos Humanos,” in Diálogos Judiciales en el Sistema Interamericano de Derechos Humanos, ed. Alejandro Saiz Arnaiz (Valencia: Tirant lo Blanch, 2017). 30 I A C tH R , case of Ivcher-Bronstein v. Peru, Fund, Reparations and Costs, Judgment of 6 February 2001, Series C, No. 74. 31 Alison Kesby, The Right to have Rights, Citizenship, Humanity, and International Law (Oxford: Oxford University Press, 2012). 32 I A C tH R , case of Tibi v. Ecuador, Preliminary Exceptions, Merits, Reparations and Costs, Judgment of 7 September 2004, Series C, No. 114. 33 Héctor Faúndez Ledesma, El Sistema Interamericano de Protección de los Derechos Humanos. Aspectos Institucionales y Procesales, 3rd rev. ed. (San José, Costa Rica: Instituto Interamericano de Derechos Humanos, 2004). 34 I A C tH R , case of the girls Yean and Bosico v. the Dominican Republic, Judgment of 8 September 2005, Series C, No. 130. 35 Christian Steiner and Patricia Uribe, eds., Convención Americana sobre Derechos Humanos Comentada (Bolivia: Plural Editores, 2014). 36 IACtHR, Case of Vélez Loor v. Panama, Preliminary Exceptions, Merits, Reparation and Costs. Judgment of 23 November 2010, Series C, No. 218.

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37 Ignacio Campoy Cervera, “El Debate sobre la Universalidad de los Derechos Humanos y la Inmigración,” in Una Discusión Sobre la Universalidad de los Derechos Humanos y la Inmigración, ed. Ignacio Campoy Cervera (Madrid: Dykinson, 2006). 38 I A C tH R , Case of Nadege Dorzema et al. v. the Dominican Republic, Reparations and Costs Fund. Judgment of 24 October 2012, Series C, No. 251. 39 I A C tH R , Case of the Pacheco Tineo Family v. the Plurinational State of Bolivia, Preliminary Exceptions, Merits, Reparations and Costs. Judgment of 25 November 2013, Series C, No. 272. 40 I A C tH R , Case of Expelled Dominicans and Haitians v. the Dominican Republic, Preliminary Exceptions, Merits, Reparations and Costs. Judgment of 28 August 2014, Series C, No. 282. 41 Corte Interamericana de Derechos Humanos, Cuadernillo de Jurisprudencia de la Corte Interamericana de Derechos Humanos No. 2: Migrantes (San José, Costa Rica: Corte I DH, 2015). 42 Comisión Interamericana de Derechos Humanos, Derechos Humanos de los Migrantes y Otras Personas en el Contexto de la Movilidad Humana en México [Preparado por la Relatoría sobre los Derechos de los Migrantes de la Comisión Interamericana de Derechos Humanos] (Washington: OEA, 2013). 43 Comisión Interamericana de Derechos Humanos, Informe Anual 1991, Capítulo V, Situación de los Haitianos en la República Dominicana (Washington: OEA, 1991). 44 In addition to the twenty-five requests for Advisory Opinion admitted for processing, four were rejected for different reasons. However, none of the requests were related to the rights of migrants or foreigners. The IA C tHR has refused to rule on a request made by Costa Rica in 2005, two by the I A C H R in 2005 and 2009, and one submitted by the Secretary General of the O A S in 2016. 45 I A C tH R , Advisory Opinion OC-25/18 of 30 May 2018, on “The institution of asylum and its recognition as a human right in the Inter-American System of Protection.” 46 I A C tH R Advisory Opinion OC-4/84 of 19 January 1984, on “Proposed amendment to the Political Constitution of Costa Rica related to naturalization.” 47 Ibid. 48 I A C tH R , Advisory Opinion OC-16/99 of 1 October 1999, on “The right to information on consular assistance within the framework of due process guarantees.”

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49 Daniel O’Donnell, Derecho Internacional de los Derechos Humanos. Normativa, Jurisprudencia y Doctrina de los Sistemas Universal e Interamericano (Bogotá: Oficina en Colombia del Alto Comisionado de las Naciones Unidas para los Derechos Humanos, 2004). 50 I A C tH R , Advisory Opinion OC-21/14 of 19 August 2014, on “Rights and guarantees of girls and boys in the context of migration and/or in need of international protection.” 51 Ibid. 52 Marcelo Bonilla, “La Construcción de la Imagen y el Estatuto del Inmigrante-Indocumentado en la España de la Época de la Globalización,” in Políticas de Ciudadanía y Sociedad Civil en Tiempos de Globalización, ed. Daniel Mato (Caracas: FACES, Universidad Central de Venezuela, 2004). 53 Laura García-Juan, “Políticas Públicas Orientadas Hacia la Igualdad de Derechos. La Llave para Preservar la Paz Social en los Nuevos Países Receptores de Flujos Migratorios Laborales,” Revista IIDH 62, (2015): 87–111. 54 Lourdes Peroni and Alexandra Timmer, “Vulnerable Groups: The Promise of an Emerging Concept in European Human Rights Convention Law,” International Journal of Constitutional Law 11, no. 4 (2013). 55 Martha A. Fineman, “The Vulnerable Subject: Anchoring Equality in the Human Condition,” Yale Journal of Law & Feminism 20, no. 1 (2008). 56 Reference to the vulnerability of the Romani people were found in the following ECtHR’s judgments: Case Chapman v. the United Kingdom, Application No. 27,238/95, Judgment of 18 January 2001 (GC ), paragraph 96; Case of Jane Smith v. the United Kingdom, Application No. 25,154/94, Judgment of 18 January 2001 (GC ), paragraph 103; Case of Lee v. the United Kingdom, Application No. 25,289/94, Judgment of 18 January 2001 (G C), paragraph 98; Case of Beard v. the United Kingdom, Application No. 24,882/94, Judgment of 18 January 2001 (GC ), paragraph 107; Case of Coster v. the United Kingdom, Application No. 24,876/94, Judgment of 18 January 2001 (GC ), paragraph 110. 57 Case of D.H. and Others v. the Czech Republic, Application No. 57,325/00, Judgment of 13 November 2007 (G C), paragraph 182. This case examined whether the obvious disproportion of Romani students enrolled in schools for children with learning difficulties (special schools) constituted a violation of their right to not be subject to racial discrimination in the field of education. The ECtHR determined that Art. 14 of the European Convention on Human Rights had been violated due to the pattern of racial discrimination in a particular sphere of public life, in this case primary schools. The court highlighted that the convention not only refers to acts of

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discrimination, but also to systemic practices that prevent the enjoyment of rights by persons belonging to racial or ethnic groups. 58 Peroni and Timmer, “Vulnerable Groups.” 59 Bustamante, “Immigrants’ Vulnerability.” 60 I A C tH R , Case of Velásquez-Rodríguez v. Honduras, Background. Judgment of 29 July 1988, Series C, No. 4. 61 For more on this subject, consult the following IA C tHR cases: Saramaka People v. Suriname; Yatama v. Nicaragua; and the Yakye Axa Indigenous Community v. Paraguay (Ventura Robles, 2011). 62 Rosmerlin Estupiñan-Silva, “La Vulnerabilidad en la Jurisprudencia de la Corte Interamericana de Derechos Humanos: Esbozo de una Tipología,” in Manual: Derechos Humanos y Políticas Públicas, eds. Laurence Burgorgue-Larsen, Antonio Maués, and Beatriz Eugenia Sánchez Mojica (Barcelona: Universitat Pompeu Fabra). 63 Helena Olea, “Migración (en la Jurisprudencia de la Corte Interamericana de Derechos Humanos),” Eunomía: Revista en Cultura de la Legalidad no. 9 (2015). 64 I A C tH R , Advisory Opinion OC-18/03 of 17 September 2003, on “Legal status and Rights of Undocumented Migrants.” 65 Ibid. 66 Some more recent judgments of the IACtHR refer to the postulates of Advisory Opinion OC-18/03 on equality and non-discrimination, although none of them is a case involving migrants. These sentences date from 2016: 1 – Case of Duque v. Colombia, Preliminary Exceptions, Merits, Reparations and Costs. Judgment of 26 February; 2 – Case of Flor Freire v. Ecuador, Preliminary Exception, Merits, Reparations and Costs. Judgment of 31 August; 3 – Case of Trabajadores de la Hacienda Brail Verde v. Brasil, Preliminary Exception, Merits, Reparations and Costs. Judgment of 20 October; 4 – Case of I.V. v. Bolivia, Preliminary Exception, Merits, Reparations and Costs. Judgment of 30 November. 67 Olea, “Migración.” 68 I A C tH R , Advisory Opinion OC-18/03 of 17 September 2003, on “Legal status and rights of undocumented migrants.” 69 Claudia A. Martínez Zaragoza, “La Violación de los Derechos Humanos de los Migrantes Irregulares. Un Análisis a Través del Enfoque del Estado de Excepción de Giorgio Agamben,” Dignitas 6, no. 23 (2013).

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9 The Development of Latin American Regional Integration and Its Implications for States’ Migration Policies N a t a l i a C a i c e d o C a ma c ho

1 In t ro du c ti on Regional and sub-regional economic integration processes, such as those represented by the Southern Common Market (M E RCO S U R), the Andean Community of Nations (C A N ), the Union of South American Nations (UNA SUR ), the Free Trade Area of the Americas (FTAA), the Common Market of the Caribbean (CARICOM), and the Bolivarian Alternative for Latin America and the Caribbean (AL BA), have helped to promote the movement of goods, capital, and people throughout these territories. Although these integration processes are essentially economic, their implications for human mobility have become increasingly evident because they have had a considerable effect on the movement of workers within this region. Latin American states have had an increasing tendency in recent years to sign agreements on regional migration, which facilitate the mobility of people (mainly workers) between countries of the same region. Accords for issues of migration, outlined within regional integration policies, are growing in number, while the free movement of people and workers is being presented as a strategic policy of regional integration. This chapter aims to contribute to the understanding of this phenomenon, by analyzing the scope of migration policies within the framework of M E R C O S U R and C A N ’s regional integration agreements, at a time when many Latin American countries are proposing significant reforms

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to their immigration legislation. Migration mobility of regional scope poses important challenges for both Latin American states as well as for regional integration institutions and, in this new context, regional agreements will undoubtedly mark the political agenda and the trend for the future of migratory flows.

2 T h e F r e e M ov e ment of People W it h in t h e   F r a m e work of MERCOSUR 2.1 Minimal Advances in Freedom of Movement: Borders and the Temporary Mobility of Workers M E R C O S U R was created largely due to the economic integration objectives of the countries of the Southern Cone (Argentina, Brazil, Paraguay, and Uruguay). Article 1 of the Treaty of Asunción states that MERCOSUR “implies the free circulation of goods, services, and factors of production between countries.”1 The foundational documents of the regional integration of these countries are thus essentially economic in nature and seek to catalyze economic growth by eliminating tariff barriers to enable the free circulation of merchandise. The initial process of MERCOSUR’s regional and economic integration reveals a clear neoliberal bias, which coincides with the economic liberalization and deregulation programs implemented during the 1990s throughout Latin America. In fact, one of the aims of the initial integration process was to support pro-business logics and carry out neoliberal economic cutbacks.2 In line with this aim, the origin of MERCOSUR’s policy on the regional mobility of people has, at its core, economic and instrumental objectives.3 In other words, the free circulation of citizens of ME R C OSUR member states was conceived as a necessary instrument to enhance economic integration and increase regional market activity. It is not an objective in itself. This position can be seen clearly in M E R C O S U R ’s Decision C M C 12 / 91, which declares “the will to build a regional space where citizens and residents of Party States can circulate freely,” and which ties people’s free mobility to the increase of “economic and commercial exchange, and tourism specifically.”4 However, in the years following the ambitious goal of free movement of people provided by its framework of economic and commercial exchange has not yet materialized. This is partially due to host communities perceiving migration processes, especially those at the regional level, as a threat, while nationals

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continue to view the long-term mobility of workers poorly.5 As a result of this prevailing conception of migratory flows, M E R C O S U R has made proclamations to support the regional mobility of people, yet the official agreements it has reached have, on the contrary, been oriented toward achieving objectives of security and border control. These latter priorities are reflected in the creation of the Consular Documentation Centre for Members of MERCOSUR 6 and the subsequent restructuring of the Integrated Border Controls System, 7 a database through which member states can share information on the migration of persons within ME R C O SU R territory. The 1994 Protocol of Ouro Preto redefined the nature of the entire MERCOSUR project and marked the end of the transition to the common market.8 However, the impetus for economic integration was not reflected in the protocol’s regional migration policy. The freedom of movement of people and workers continues to be understood as an issue internal to member states, and the agreements adopted follow the logic of migration control, as evidenced by agreements to develop border control instruments and exchange immigration information.9 The rigidity of ME R C OSUR ’s migratory policy contrasted with the reality of the region’s evolving migration patterns, as the 1990s witnessed the increase of both intra-regional (South-South) mobility, and that of Latin American residents migrating to the south (North-South), accompanied by a process of emigration from the Southern Cone.10 In this sense, it was not until the end of the 1990s that progress was made toward more flexible policies on the free movement of people.11 The year 1999 saw the approval of the Border Mobility Agreement, which permitted the increased movement of cross-border labourers, within the framework of the Socio-Labour Commission, and implemented the Neighbourhood Transit Credential. This agreement enables citizens living in border territories to cross the border via an expedited procedure and reside in the territory of the member state for a total of seventy-two days.12 While the Neighborhood Transit Credential is one of the first steps toward creating more permeable borders, the establishment of the Border Mobility Agreement was developed bilaterally, which left the definition of essential aspects of the agreement to be negotiated by relevant states. Interestingly, the agreement incorporated Chile and Bolivia, representing the first such case involving M E R C O S U R associate states. To address issues of long-term migration, the Multilateral Agreement on Social Security was signed in 1998. The agreement recognizes

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certain social security rights for national workers who provide, or have provided, services in any of the party states. The main objective is to eliminate social security systems as obstacles to achieving workers’ freedom of movement. To this end, the agreement maintains the social security benefits immigrants have acquired and considers valid all contributions made while residing in any member state. The agreement also allows member countries to share benefit disbursement costs, in proportion to the amount of time worked and cited by the benefit recipient.13 While the framework guiding Southern Cone regional integration and social security does, for the first time, address social issues, these provisions, which are ostensibly intended to facilitate the mobility of all people, in fact, extend only to workers. In the year 2000, as policies on the free movement of people and related visa issues started being taken up, surrounding debates intensified. Agreement 48 / 00 on visa exemptions between member states14 constituted a first step in eliminating obstacles to the free movement of people. The agreement recognizes the right of nationals of member states to access the territory of another member state – without a visa – for stays of up to 90 days, extendable up to 180 days. The agreement is selective, granting this visa exception only to the following job categories: artists, athletes, professors, journalists, technical and specialized professionals, and scientists. It reaches what is considered the essential core of migration policies, by treating as communal an area that is the most sensitive to state sovereignty. Despite this, the logic underlining the agreement privileges the economic interests of member states and, in this particular case, promotes and facilitates the migration of persons belonging to categories that would constitute so-called qualified migration. In addition, the type of migration recognized is only that of short-term mobility (maximum 180 days) and performing a qualified work activity is required for entry. The agreement has subsequently developed specific accords pertaining to individual labour sectors. These took effect in 2005, after being ratified by all member countries. Subsequently, Agreement 16 / 03 for the creation of the MERCOSUR visa was signed in 2003. This creates a special visa with more flexible administrative procedures for managers and executive directors, ­­administrators, directors, scientists, researchers, professors, artists, athletes, journalists, highly qualified technicians and specialists, and high-level professionals. The MERCOSUR visa is granted to persons who apply to enter any of the member states with the intention of

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providing temporary services, under contract for the performance of remunerated activities, and recognizes the person’s right of residence for up to two years, extendable up to a period of four years. Agreement 16 / 03 builds on the progress established in the 2000 agreement and visa progress focused on two areas – the allowed duration of residency was extended from a maximum of 180 days to a maximum of four years, and the category of beneficiaries was modified to include persons carrying out a broad array of business or economic projects. In the year 2000, an agreement was also signed between the countries of MERCOSUR, Bolivia, and Chile, regarding consular assistance.15 The purpose of the agreement is to facilitate the protection and consular assistance of citizens of these signatory countries when they are in foreign states where their country of nationality does not have consular representation. Progress in matters of consular cooperation is especially relevant, considering that during the 1990s and 2000s, member and associate states of ME R C O S U R experienced significant emigration flows to the United States and Europe. In light of this situation, it would be beneficial for a national of the countries mentioned above to receive consular assistance from a neighbouring Latin American country to help ensure their rights are protected on a range of issues, from simple consular procedures to consular assistance in expulsion proceedings and human rights violations. However, formalizing this assistance will largely depend on the extent to which member states agree to implement necessary measures, as well as create a system to coordinate and exchange information between embassies and consulates effectively.16 If the governments of the countries in question do not approve these agreements and instead establish corresponding internal regulations, and have their consular offices implement them, citizens of ME R C O SU R countries, and Bolivia and Chile, will be unable to request consular assistance of one of these states when their own nationality lacks diplomatic representation in the country or city where they reside. Similar to how it has been described in the literature, the economic integration of the Latin American region also entails corresponding changes in immigration matters.17 Yet, it has become clear that perspectives on immigration continue to be linked to economic objectives, because the free circulation of people is extended exclusively to workers, and that only insofar as this increased mobility accrues benefits to the common market. The logic underpinning the free movement of

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people is thus closely aligned with the economic interests of the member states and is intended to promote and facilitate only the migration of people belonging to categories that could be considered qualified migration. However, the visa agreements have focused on certain labour categories that do not reflect the reality experienced by most migrants. That is, the vast majority of migrant work carried out in M E R C O S U R member and associated states usually takes place in irregular, low-skilled, and precarious environments.18 In the same vein, the agreement on social security – without detracting from the relevance of ME R C O SUR ’s commitment to addressing social and labour issues – projects a vision of migration policy that privileges the rights of migrant workers with regularized immigration status who perform activities within the formal labour market. Irregular immigration thus continues to be legislated through a prism of security and border control, while the protection of migrant rights has been marginalized in discussions and agreements between states. The changes in the economic focus of migration mobility began with the Socio-Labour Declaration, contained within the framework of the XXII Meeting of the Ministers of the Interior, held in 1998 (and approved in 2001). In 1998, the Socio-Labour Commission recognized the need to incorporate more social elements of freedom of movement into the commission’s framework. Thus, the declaration recognizes migrant and border workers’ “right to assistance, information, protection, and equality of rights and working conditions provided to nationals of the country in which they are exercising their activities, in accordance with the professional relations of each country.”19 However, the declaration cannot be legally enforced; therefore, its effectiveness is subject to the agreements reached between MERCOSUR states. In any case, the declaration represents an important step in incorporating social objectives in the regional integration process; and in some countries has been an internal and direct application of the declaration through judicial pronouncements.20 The opening of this new channel coincides with, and reflects, a change in the political leanings of governments, both in MERCOSUR member and associated states. A wave of new governments taking up a social agenda, represented by leftist and progressive governments, are driving migration policy shifts in a way that values migrants’ enormous social and economic contributions to the state, placing at the centre of the political agenda such key issues as the recognition of migrants’ rights regardless of their immigration status, promotion of regional processes

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for the regularization of migrants, commitment to the development of a legal framework that guarantees regional mobility, and the protection of minors crossing borders. 2.2 Steps Toward Policies for the Free Mobility of People M E R C O S U R ’s social foundation and its advance beyond a vision focused on economic objectives, migration control, and a one-­ dimensional conception of the migrant21 has its origins in the 2001 XVI Meeting of the Ministers of the Interior. This meeting culminated in a decisive commitment, as the proposals and agreements, within a regional integration framework, incorporate human rights principles and allow claims of citizenship as a basic principle, guaranteeing the right of nationals of member states to legally reside in other member states of ME R C OSUR . As of 2001, the so-called social agenda was integrated into the objectives of regional integration of the countries of the South. What is more, issues such as worker rights, immigrant rights, social inequality, and the environment have become topics of interest in the meetings of ministers and presidents of the member states and are, likewise, also included in M E R C O S U R ’s political agenda.22 This new orientation suggests the beginning of a paradigm shift in the politics of the region, displacing the doctrine of national security in favour of one focused on human rights, with a particular impact on migration issues.23 This new approach to addressing migration began to materialize in 2002 with the signing of two migratory regularization agreements. The first dealt with the regularization of the internal migration of MERCOSUR citizens, and the second with the regularization of the internal migration of MER C O SUR citizens and those of Bolivia and Chile. Perhaps the most salient aspect of these agreements is that they allow migrants in irregular situations to regularize their status without having to return to their country of origin. In addition, the agreements established that people can access the process of regularization regardless of the migration category under which they had initially entered into the territory of a state. This allows for residence authorization for both migrants whose irregular status took effect after their arrival in the country as well as for the so-called overdue or unexpected irregulars.24 While the above agreements reflect an understanding of the migration phenomenon as a complex and multisided process, they also lay bare the failures of states’ migration policies to date. Thus far, the migration regulations

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put forth have not proven effective at responding to the reality of recent migration trajectories, because they have failed to guarantee migrants’ right to reside in the host state under a regularized status. In fact, these agreements suggest that processes of migrant mobility between the countries of MERCOSUR, Bolivia, and Chile, have given rise to irregular immigration, and as a consequence, to the lack of protection of migrant rights, exposing migrants to situations of exploitation. The Residence Agreement for nationals of the states of MERCOSUR, Bolivia, and Chile, signed in Salvador de Bahía, Brazil on 2002, is the most ambitious agreement to date subscribed to by states. The Residence Agreement seeks to create a free area of residence for nationals of M E R C O SUR states, and Bolivia and Chile, signalling that the implementation of a policy of free movement of people in the region is essential for achieving integration. The Residence Agreement recognizes a person’s right to temporarily reside in another member state, requiring only the presentation of a valid passport or national identity card and proof of no criminal record. This recognition splits the difference between the right of residency, the unrestricted ability to relocate and reside, and the right to request residence, by applying at the corresponding state’s consular office where a person plans to migrate. However, the agreement does not directly provide the right to move, because nationals of one member state wishing to establish themselves in the territory of another member state must still appear at the consular headquarters of that country and request entry. In other words, the visa requirement is maintained but under a very flexible structure that facilitates freedom of movement and residence. Nonetheless, the maintenance of the visa requirement has been one of the main criticisms of the agreement. For example, scholars like Pablo Ceriani have called attention to the fact that the agreement’s criterion for the liberalization of migrant residence was not accompanied by a process resulting in the elimination of borders between countries.25 Among the most notable elements of the Residence Agreement is that a person’s ability to obtain a visa and their right to migrate on a regular basis does not depend on their income being verified or, and proof of an employment contract being obtained. The elimination of these requirements represents a clear and decisive commitment to the articulation of the right to free movement. This is significant because it means that migration flows are no longer dependent on, and controlled through, a labour contract. Instead, they are moving toward a

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model that recognizes and guarantees the right of movement and of residence regardless of one’s ties with the formal labour market. In addition, the right to entry into another member state, regardless of the existence of a previous labour contract or personal income, is reinforced through the recognition of one’s “right to access any activity, both on their own account and as an employee, under the same conditions as those of nationals of the receiving countries.”26 What is more, the agreement works as an indirect regularization of migrants without authorization residing in receiving states. This is because the right of residence is recognized for persons planning to migrate, and those already residing in the territory of member states, and extends to the family of the migrant. The agreement allows nationals currently living in the territory of another member state, who want to officially establish themselves there, to file a request for regularization with a migration services office. Similar to the process in which migrants seek authorization of residence by appearing before a consulate, the process for people with irregular status requires them to present a valid passport or a national identity card and proof of no criminal record. The Residence Agreement not only recognizes migrants’ right to conduct any type of labour activity under the same conditions as nationals, but it also recognizes that migrants have civil, social, cultural, and economic rights equal to those of nationals. Migrants therefore have the right to transfer remittances, the right to equal treatment under the same labour legislation as that received by nationals of the host country, especially for remuneration, working conditions, and social insurance. The recognition of rights pertaining to the migrant family unit are of particular importance. On the one hand, the agreement includes the right to family reunification, described as “family members […] will be issued residence of the same validity as that of the visa-holder they are dependent upon.”27 Family reunification implies the recognition of a right, but, from the point of view of migration public policy, it also assumes that immigration is not a temporary or circumstantial process, but a permanent one that will transform the host society. Therefore, states are committed to promoting longterm migration and to providing stability to migratory movements in their territories. In any case, the provision of this right is poorly defined, because it fails to specify which members are included within the term “family” or the requirements to relocate accompanied by one’s family members. To date, no agreements have advanced the

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definitions or provisions pertaining to family reunification. It has been left up to individual member states to determine how they exercise this right. However, the agreement does feature a section on minors and children of migrant populations, which recognizes children’s right to a name, registration, and nationality in accordance with respective domestic laws, as well as the right to access the educational system under conditions of equality. The Residence Agreement represents MERCOSUR’s most ambitious commitment to date, not only because it incorporates the right of residence within the framework of regional decisions, 28 but also because its provisions actually exceed those extended by the individual member countries of M E R C O S U R . It has also positioned South America as a key actor at the global level,29 since it implies a significant advance in the regulation of regional migration. The original version of the agreement incorporated Bolivia and Chile, with Ecuador and Peru joining in 2011, and Colombia in 2012;30 Venezuela joined in  2012. However, Venezuela’s incorporation in the Resident Agreement was suspended in 2017 due to its political crisis. As a result, the Agreement, proposed as a way to protect a region’s right to mobility, cannot be applied to Venezuelan nationals, the largest forced migration that the region has experienced. 31 Moreover, multiple problems have impeded the application of the agreement. First, the agreement has not been understood as a rule that is directly applicable to member states; on the contrary, it has been established through an international treaty and is subject to signature and ratification by each member state. Therefore, this is not a legally binding agreement, but must await incorporation into each member state’s internal rules and regulations.32 Because it cannot be directly applied, its effectiveness is largely dependent upon the existence of an inclusive, long-term migration policy in the region and to its implementation by member states. Furthermore, the inability to directly apply the residence agreement and the lack of enforceability mechanisms have delayed a number of rules developed within the framework of M E R C O S U R precisely because the lack of enforceability is one of the greatest obstacles in establishing the free movement of people.33 Scholars, moreover, have indicated that one of the main problems of M E RCO S U R is that the Residence Agreement “attempts great integration objectives through an essentially intergovernmental legal-institutional framework, without forfeiting national sovereignty.”34 In the case of the Residence

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Agreement, it appears that we have waited over ten years, from its entry into force, for all member states to ratify and incorporate these agreements into their internal regulations.35 Besides, the agreement has been applied at different rates and with varying levels of intensity across member states.36 At the same time, the effectiveness of the agreement depends on two related processes: the reform of admi­ nistrative bodies responsible for the management of migration procedures – who still cling to a vision of immigration oriented toward control and security – as well as the ability of these immigration bodies to be more flexible in adapting their internal rules and procedures to better reflect the lived reality of migrants. Under the Residence Agreement, nationality in one of MERCOSUR’s member states is the criterion for acknowledging rights as part of the regional citizenship project.37 This new role given to nationality represents one of the most transformative advancements in support of regional integration and the promotion of the free movement of people. However, it also implies the creation of a new migratory statute that exclusively privileges MERCOSUR nationals, and thus constitutes a framework that differs little from the prevailing trend of atomizing migrant rights. Here, the recognition of rights is not based on a person’s immigration status or presence in the territory, but is determined by the various migration statutes contained within regional migration agreements and by states’ internal migration legislation. This process of fragmentation of different statutes (MERCOSUR national, migrant with regular status, migrant with irregular status, etc.) results in the stratification of migrants’ rights. From this point of view, possession of MER C O SUR nationality as the requirement for the acknowledgement of rights contributes little to the recognition of the universal human right to migrate free from discrimination. What is more, there have also been objections to the agreement because it may imply the development of more restrictive standards or regressive changes in rights currently in force, especially in countries that recognize migrant rights regardless of immigration status.38 Beyond the Residence Agreement, the objective of the free movement of people continues to advance through the signing of three instruments that facilitate the mobility of specific groups: business entrepreneurs, tourists, and students. These instruments include Decision C M C 32 / 04,  which eliminates obstacles for entrepreneurs; Decision CMC 10 / 05, which eliminates the tourist visa and recognizes the right to free ­mobility between member states for a period of ninety days; and Decision 21 / 06, which establishes free visas for students.

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Finally, it is worth mentioning the Action Plan for the gradual development of a Statute of MERCOSUR Citizenship.39 This document serves as a fifteen-year roadmap to gradually implement a Statute of Citizenship, and outlines the general framework of rights and freedoms that this statute must contain. The Action Plan represents a regional strategy for implementing a policy of free movement of people in the region, encompassing the political, economic, social, and cultural sphere, while seeking to deepen the social dimension of citizenship by guaranteeing equality of access to work, health, and education.40 At the core of this future citizenship is the recognition of free movement and the protection of the rights of regional migrants, regardless of their status as labourers. However, we must continue to wait for this Statute of Citizenship to be enacted, and pay special attention to the terms under which rights are recognized, given that the statute may serve to either increase the recognition of migrant rights, or, restrict rights already recognized in existing international, regional, or national instruments.41 In this sense, the content of civil, political, and social rights developed within the Statute of M E RCO S U R Citizenship will define the migration model and the framework of protections and equality of rights extended to migrants. MERCOSUR’s push for the free movement of people in recent years is unprecedented. Although, at first, support for mobility was limited to highly qualified immigrants, subsequently the Residence Agreement demonstrated a clear intention to overcome initial regional integration efforts that were limited to achieving economic objectives, by also including a broader range of migrant workers, and recognizing their rights. In particular, the agreement states that the right to reside in another member state is not conditional on a migrant’s proof of economic resources (employment contract or personal financial assets). This differentiation between residence and work shows that MERCOSUR is committed to a model of free movement of people that diverges from that of the European Union, as well as from migration models and the legislation of individual member states. However, as the agreement has shown, this policy progression toward free movement is antithetical to restrictive border control policies and the continued regulation of people’s movement between states. It thus becomes clear that, while many state norms declare persons’ free movement as a fundamental objective for regional integration, the content of their domestic laws belies this, because these norms continue to be mechanisms of migrant restriction and control, most notably by requiring personal identification documents.42

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2.3 Sectoral Advances on Migrant Groups in Situations of Vulnerability In recent years, member states have shown increasing concern about the trafficking of children and adolescents. The protection of children is considered a principal objective of states and is featured in various declarations that aim to adequately assert control over the transfer and movement of minors in the region. In 2008, the Agreement on the Procedure for Verification of Documentation for the Entry and Exit of Minors in Member and Associated States was signed.43 The purpose of this agreement is to increase the level of protection of minors who move between countries of the region by bolstering systems of control and surveillance at border crossings.44 Despite the importance placed on the protection of minors by the declaration, to date states have made scant progress toward complying with and implementing this agreement. Only Argentina and Brazil have incorporated the agreement into their legal systems by modifying their regulations or establishing manuals, and made the necessary procedural reforms at border control crossings; as for the rest of the countries, the agreement has yet to be applied in any meaningful way.45 A second instrument is the Agreement between Member and Associated States of M E R C O S U R on regional cooperation for the protection of the rights of children and adolescents in situations of vulnerability.46 The agreement facilitates states’ ability to exchange information about children and adolescents in such situations,47 as well as requests for information on the whereabouts of minors. While this instrument demonstrates that combatting human trafficking and the trafficking of minors is a high priority for the region, it should be noted that states have yet to implement the agreement. Only Argentina, through its National Directorate of Migration, has established the Migratory Capture System platform (SICAM), which is used at border crossings and records information on the migration movements of any person exiting and / or entering the national territory. This platform provides information on any exit restriction or request of whereabouts ordered by a competent authority, as well as information on the revocation of a minor’s travel authorization requested by the parents.48 These types of agreements or instruments constitute a new approach to M E R C O S U R ’s migration policy, because states have the ability to reach beyond entrance and residence regulation (visas, residence,

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reunification) and include a sectoral focus closely associated with the protection of groups in situations of vulnerability, such as migrant minors. The priority of establishing common frameworks of action in the fight against human trafficking is also reflected in the preparation and signing of the regional guidelines action to identify situations of human trafficking in M E R C O S U R and associated states’ border crossings in 2012.49 What is more, the agreements regulating the movement of minors also extend to associated states. This demonstrates M E R C O S U R ’s dedication to seeing that the protection of vulnerable migrant and human rights, more broadly, is incorporated into, and reinforced by, Latin American countries that are not full members of M E R C O S U R . Finally, Advisory Opinion No. 21 on migrant children, made before the Inter-American Court of Human Rights, bears mentioning. The opinion of the court, issued at the request of the countries of MERCOSUR, identifies the obligations of both transit and destination states for the protection of migrant children; one of the obligations included is the establishment of procedures to identify and refer minors in need of protection. Stemming from this, M E RCO S U R states have begun drafting a regional protocol to protect migrant adolescent boys and girls. This procedural guide aims to establish common criteria for identifying and taking action on situations in which rights have been violated, those requiring special protection of migrant children and adolescents, as well as mechanisms to provide referral to, and care by, child protection agencies.50

3 T h e F r e e M ov e m e nt of Persons W it h in t h e C A N Framework The CAN was created in 1969 under the Cartagena Agreement51 with the objective of promoting the balanced and harmonious development of member countries under conditions of equity, through integration and economic and social cooperation. The CAN (hereafter referred to as Community) forms part of the first wave of Latin American regional integration processes52 and has undergone important changes throughout its history. The origin of the Community is marked by the influence of two historical periods in Latin America. The first is the previous attempt to carry out regional economic integration, based on the ­discourses of the Economic Commission for Latin America and the  Caribbean (E C L A C ), as well as other pioneering integration

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processes, such as the Latin American Free Trade Association (ALAC), the Central American Common Market (M C E ), and the Andean Subregional Group, known as the Andean Pact. These processes were carried out between the 1950s and 1970s. The second period began in the late 1980s with the development of neoliberal policies in the region, which have continued to gain prominence up to the present day. Given the economic character of both of these influences on the formation of the Community, there is little doubt that economic integration has served as the driving force behind its creation. Despite CAN’s economic underpinnings, some social objectives appear in its foundational document. In fact, some scholars have noted that the Andean integration project has deliberately included social and cultural objectives since its inception.53 This can be seen in its references in the Cartagena Agreement to “harmonious and balanced development in conditions of equity”54 and “strengthening sub-regional solidarity and reduction of differences of development between Member Countries.”55 They suggest CAN’s intention to achieve regional integration that also reflects material equality and equity among countries. Unlike the processes of regional integration observed in other parts of the globe, where the free movement of people is understood as a secondary objective to be achieved after the integration of goods and capital, in the CAN the free movement of people (in this case, workers) is a first-order objective in the regional integration process. In 1973, a few years after the Cartagena Agreement was established, the Simón Rodríguez Agreement was signed to define and coordinate community policies to promote employment, job training, capacity building, work safety and health, social security, and labour migration, among others. Within the Rodríguez Agreement, two decisions were issued that would subsequently serve as the basis on which the framework for the free movement of workers was built. The first is Decision 113 / 77, which established the Andean Instrument of Social Security, and decades later would give rise to the Andean Social Security System. The second is Decision 116 / 77, which created the Andean Labour Migration Instrument (IAML). It directly addresses the implications of immigration in regional integration processes by defining common procedures for hiring Andean workers and ensuring social protection for them and their families. In addition, this decision introduced the following clause on equality and non-discrimination of migrant workers: “There can be no discrimination in the employment of migrant workers for reason of sex, race, religion, or nationality. As a result, they will have

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the same labour rights as workers in the country of immigration, including those reached in collective agreements, and will receive equal treatment with regard to the exercise of trade union rights, subject to the national legislation of the country of immigration.”56 Despite the comprehensive nature of these two decisions,57 various trends greatly impeded the progress of the regional integration of the C A N , such as the dictatorial Chilean regime, which withdrew Chile from the C A N in 1976, and, more broadly, the economic and political crisis of the 1980s (i.e., the debt crisis in Latin America). This time period saw a constant increase in these countries’ external debt, the protectionist policies of the Global North, and the drying up of international capital flows,58 all of which contributed to marginalizing the political objectives of integrating countries of the Andean region. As a result, the goal of people’s freedom of mobility within the Andean territory remained in the background for more than two decades. At the end of the 1980s, the signing of the Quito Protocol reaffirmed the Andean countries’ dedication to resuming the regional integration process. In this renewed political context, Decision 397 / 1996 established the Andean Migration Card (TAM). This decision, essentially a technical regulation, served to harmonize national migration control documents, so that the TAM became the valid document required for border crossing. The decision sought to simplify the controls regulating the movement of people as they enter and exit the territory of CAN member states. However, the existence of the TAM does not expressly eliminate the requirement of passports or visas, because the decision “does not exclude the presentation of the passport, visa, or other travel documents provided for in national or community regulations.”59 States, therefore, may exercise their sovereignty by continuing to request the documentation they deem necessary to control the movement of persons in their territory. In this sense, the T A M currently serves less as an instrument that eliminates border controls, and more as an aspirational symbol of free CAN mobility in the future. Also, one objective of the T A M instrument is to obtain data on the migration movements of people and workers of member states within the territory of the Andean Community. The 1999–2001 annual meetings of the Council of Andean Presidents once again situated human and social development in CAN’s political agenda, because the free movement of workers continued to play a central role in regional integration. In 1999, the council

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committed to creating conditions under which the free movement of goods within the Andean market would also incorporate the free mobility of people, services, and capital. The following year, the Lima Act60 created the roadmap to guide the Community on immigration matters. It established the following agreements: 1 Recognize the use of the National Identity Document as the only registry for the free intra-community transit of people, starting with Andean tourists. 2 Establish an integrated identification system at the sub-regional level with the aim of standardizing national identification documents. 3 Approve common rules on labour issues, social security, and health and safety at work. 4 Approve the right to residence. The road map on residence and free movement incorporated in the Lima Act is proposed as a gradual yet ambitious objective. On the one hand, the word “residence” was incorporated for the first time in C A N ’s framework as a political objective. It represents an important advance that – although it has not yet come into legal force – aims to go beyond the simple idea of migrant circulation to incorporate the concept of residence and, thus, more stable migration processes. On the other hand, the incremental nature of the Act’s implementation appears to be a feasible process. It begins with the mutual use of valid border crossing documents and arrives at a scenario where people’s mobility between Andean countries and their ability to reside in them would be fully realized. The first of the rules aimed at promoting the mobility of people and, in this particular case, facilitating border crossings, is Decision 526 / 2000, which establishes ticket windows at airports for nationals and foreign residents of member states. One year later, Decision 503 / 2001 was signed, which recognizes national identity documents and grants “nationals of any of the Member Countries the right of admittance and entrance into any of the other Member Countries, as tourists, by only presenting one of the national identification documents, valid and in force in the issuing country and without the requirement of a consular visa.”61 This regulation involves the mutual recognition of national identification documents at the borders of each of the member states. This means that people are only required to

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show their national identification documents at the border without the need for a tourist visa. Granting mobility for tourism purposes has been shown to be the first step that states are willing to take and has contributed to making mobility controls more flexible. In addition, this flexibility entails the elimination of tourist visas, which implies reallocating an important aspect of Andean states’ sovereignty and surrendering a relevant instrument for controlling migration flows. However, the scope of the agreement is limited, because it only pertains to citizens who travel as tourists, while countries continue to process travellers’ identification at borders through identity documents issued by member states. Another point worth highlighting is the minimal recognition of the rights of citizens who travel as tourists. The above decision features a clause of equality, stating that “the national tourists of any of the Member Countries will enjoy the same rights as the nationals of the Member Country,”62 but fails to detail the explicit rights that are ­recognized. The way in which the principle of equality has been provided – making states responsible for its implementation but without any guarantee of enforcement – can be interpreted as a declaration that there will be no change in access to health, legal assistance, among other rights. In addition, it is not clear whether states maintain the capacity to reject persons at the border, and if so, what the rights are of those who are rejected. What is more, the regulation itself contains a clause limiting the scope of rights that would be recognized, given that equality is guaranteed “without prejudice to national provisions related to migration, internal order, national security, and public health.”63 One of the most prominent parts of the agreement is found in the final section, outlining the commitment to holding annual negotiations, coordinated by the General Secretariat of the Community, with the aim of harmonizing the migration laws of member states. The agreements made by the General Secretariat will be formalized into decisions to be adopted by the Andean Council of Foreign Affairs Ministers. The annual meetings seek to institutionalize a high-level governmental platform of exchange where agreements on the free movement of people and workers can be discussed and decided upon. In addition, these agreements will culminate in official decisions, and thus, regulations that must be articulated and applied within the internal legal systems of the member states. This reference to annual meetings shows the Community’s clear intention to advance debates on the free movement of people and to make the respective decision-making procedures more flexible.

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The second instrument issued that same year is Decision 504 / 2001, which was responsible for the creation of the Andean passport. The decision describes the purpose of the Andean Passport as “an instrument that contributes to the consolidation of community awareness and cohesion among the nationals of the member countries and to the international identification of the Andean Community as a group of countries committed to a common integrating project.”64 That is, its underlying logic is to facilitate the mobility of nationals of member states, while at the same time strengthening the identity of the CAN more broadly. The decision places the responsibility for creating uniform minimum technical specifications of terminology and security of the Andean Passport in hands of the General Secretariat. In 2003, two norms were issued that update the two instruments created in the first stage of the Andean Community, the IAML (Andean Labour Migration Instrument), and the Andean Instrument of Social Security. The first norm is Decision 545, which modifies the IAML. The objective of this instrument is to facilitate the free movement and residence of Andean nationals who migrate for work purposes and whose work relationship is characterized as dependent. Subjectively, the decision classifies migrant workers into four broad categories: individual movements, company worker, temporary worker, and border worker. In addition, the decision recognizes a wide range of rights, including the principle of equal treatment and access to opportunities and the right to organize and collective bargaining, as long as activities are conducted in accordance with the current legislation in each country. It also recognizes a regime of protection for the migrant worker’s family and establishes a set of rules to avoid double taxation of migrants’ income from work or other activities. However, as scholars have pointed out, “the decision falls short of laying down a truly comprehensive mobility regime. In contrast with the initial drafts, where the free movement for all workers and the self-employed were enshrined.”65 The IA ML regulates the categories of migrant workers and recognizes their right to free movement and residence; it thus provides substance and meaning to the free movement of people within the C A N .66 At the same time, it represents an expansion of Andean Community agreements, previously limited to addressing border control and facilitating the circulation of tourists, to focus on labour migration issues. Nevertheless, the existence of a safeguard clause within the above decision is a cause for concern. According to this clause, member states may temporarily suspend protections of equal

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access to employment for up to six months in cases of unrest or disturbances that may seriously affect the employment environment in a specific geographical area, or sector of the economy, and which may also be detrimental or pose an exceptional risk to the population’s standard of living.67 The second norm aimed at updating the CAN’s structure on migration is Decision 583, which modifies the Andean Instrument of Social Security. The new instrument seeks to facilitate the mobility of people to carry out labour by guaranteeing their equal access to social security benefits. Similar to the M E R C O S U R agreement, the objective is to prevent workers from losing labour rights, in particular their social security contributions and benefits, the threat of which disincentivizes the free movement of workers. In this sense, the above decision aims to guarantee migrant workers, as well as their beneficiaries 1) the full application of the principle of equal treatment, or equal treatment as nationals, within the sub-region, and the elimination of all forms of discrimination; 2) the right to receive social security benefits while residing in another member state; 3) the conservation of acquired rights and the continuity of affiliation to the social security systems of the member states; and 4) the right to receive corresponding health and economic benefits during their residence in the territory of another member state, in accordance with the legislation of the receiving country. The reform of the I A M L serves as the basis for the creation of a single social security system throughout the C A N, from which migrant workers and their families can benefit.68 The body in charge of coordinating the application of the I A M L is the Andean Committee of Social Security Authorities, which has been created expressly for this purpose. Another regulation adopted in 2003 is Decision 584, which created the Andean Mechanism of Cooperation for consular assistance and protection, as well as other migration issues. This body aims to coordinate reciprocal consular support activities to better protect the fundamental rights of nationals of any of the member countries of the Andean Community. It also aims to achieve social security and labour guarantees, as well as facilitate the exchange of information about the immigration of nationals of any of the CAN member countries who find themselves outside their country of origin. The consular protection offered to citizens of CAN member states has special significance, given the high rates of emigration from these states. However, implementing the above regulation took more than

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ten years and was accomplished, in part, through bilateral agreements. Because of this, nationals of Peru and Ecuador can seek health-related attention at the Colombian consulates located in the United States. In turn, Bolivian citizens can seek assistance at Ecuadorian consulates located in Tapachulas (Mexico) and in Phoenix (United States).69 In the years following Decision 584, debates on freedom of movement and residence took place within the framework of the Andean Migration Forum, a meeting dedicated to dialogue among member states with the aim of making progress toward the free movement of people. To date, five Andean Migration Forums have been held. The accomplishments of the first two forums (the first held in Quito in 2008 and the second in Lima in 2009) materialized in the shape of the 2012 Andean Human Development Plan for Migration. The most recent Andean Migration Forum took place in Bogota in 2013, where discussions on the Andean Migratory Statute project began, a project that seeks to consolidate Andean citizens’ rights to circulation and residence throughout the Community’s territory under one single regulation. Likewise, this project aims to create the necessary conditions for the creation of homogeneous migration rules throughout the entire South American region. One of the most important steps taken by the CAN has been the construction of a statute that allows for the mobility of nationals of member countries in broader terms than those provided for in current norms. In 2015, the Andean Parliament approved the Andean Statute of Human Mobility, which tackled the shortcomings of Decision 545. This statute was designed as a mandate, in political terms, from the Andean Parliament to member states, specifically to the foreign affairs ministers, to strengthen the recognition of rights of citizens of Andean countries. The crafting of a statute that incorporates the principles of equality and no discrimination, as well as the recognition of a broader number of rights (such as the right to labour, family reunification, and political rights) stands as the first pillar for the construction of a future Andean citizenship.

4 S o u t h A m e r ic a Regi onal In t e g r at io n a n d i ts Li mi ts The incorporation of the free movement of people within the framework of the integration processes of M E RCO S U R and the CAN has been gradual and largely subject to states’ waxing and waning political efforts in achieving regional integration. This incorporation effort

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began with conservative policies on control over border crossings, later proceeding toward relaxing visa requirements and establishing common rules on the free movement of people and social security regimes. For more than a decade, the M E RCO S U R process has been moving a vision of closer integration forward that not only recognizes the possibility of people’s free circulation and border crossings, but also their right to residence. This signals that positive progress has been made within the framework of MERCOSUR agreements, showing a shift toward the implementation of statutes that permit migrants to reside in their country of choice on a regular basis, as well as provide for their equal access to an outlined set of rights. What is more, in recent years, issues not strictly related to core immigration matters (i.e., border crossing, visas, and residence) have also become part of the political agenda of member states and MERCOSUR. Thus, both the fight against human trafficking and the trafficking of minors have begun to be incorporated into MERCOSUR advances. And, following the approval of the Residence Agreement, the idea of migration as strictly linked to market-oriented economic objectives and the circulation of highly qualified workers has largely been abandoned. The fact that the agreement does not require workers to have previously possessed a work contract, or to have migrants’ financial resources verified, demonstrates a distinct orientation away from strict labourmarket-oriented aims, prioritizing instead the mobility of people between member states. CAN’s advances are still incipient and characterized by their limited scope, pertaining only to issues of border crossing, facilitating visa procedures, and protecting rights linked to migrant worker social security systems. In addition, CAN processes can largely be categorized as privileging the immigration of highly qualified persons. So far, communal regulation of migration has not been a top priority of the Andean Community, but it remains possible that broader trends toward increased migration mobility may spur further progress on this issue. Another element worth highlighting is the difficulty of applying official agreements and decisions within the framework of the MERCOSUR and CAN integration processes. First, MERCOSUR agreements have the same legal standing as international treaties, so it is incumbent on each member state to subsequently incorporate approved agreements within their own internal regulations. Yet, at the same time, there are no mechanisms to control or enforce states’ timely, or effective, compliance with such agreements. Reports on the

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progress of implementing approved agreements are only drawn up during conferences between presidents or defence ministers. As a result, diplomatic pressure is the only external mechanism that can ensure that agreements between member states are implemented. The Arbitration Court, set up under the Olivos Protocol of 2002, has barely issued pronouncements on migratory matters.70 Second, within the framework of the Andean Community, the situation is very similar. Although CAN agreements do not have the same legal weight as international treaties, since they are treated as internal laws in their own right, there is no way to control or enforce compliance on these decisions. C A N agreements are governmental but not judicial in nature, and it is left to individual states to debate and decide on their compliance with the decisions already adopted. It should be noted that progress in the area of free movement of people is linked to the political agenda of member state governments. As a result, to date, the issues of facilitating regional mobility and recognizing the rights of regional migrants have not been addressed from a state policy standpoint or even considered as primary objectives of the regional integration processes. This inadequacy has been especially visible in MERCOSUR’s agreements on migratory regularization and residency, where the processes of internal incorporation of the agreements, in some cases, have taken more than ten years. It is also important to indicate how the similar political orientation of the majority of member state governments throughout the first decade of the 2000s proved to be a driving force in re-envisioning the concept of the free circulation of people. Specifically, it resulted in separating regional mobility objectives from economic objectives to develop a closer orientation to the human right to mobility. However, in recent years, the political landscape in South America has begun to shift rightward, with the newly empowered neoliberal governments now tasked with implementing and furthering the agreements adopted in the previous decade. For example, despite the ambitious gamble that MERCOSUR citizenship represented in 2010, it has not evolved to the extent anticipated, largely due to the change in political orientation of the governments responsible for its continued development. Given the region’s shifting political sands, it is foreseeable that regional mobility debates will also shift accordingly, and the free movement of people will once again be treated as an instrument to facilitate the free movement of goods and merchandise, regressing from visions focused on the human rights of mobility and social protections.

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Finally, it is worth noting that there is a great need to create arenas for the convergence of M E R C O S U R and C A N regional integration processes. The gradual extension of MERCOSUR agreements to associated states (Chile and Bolivia) and extended states (Colombia, Peru, Ecuador, and Venezuela, although the latter was suspended in 2017), and especially the extension of the Residence Agreement, suggests that the regional integration of migration issues will follow the path laid out by MERCOSUR. What remains to be determined at present, however, is whether the policies on the free movement of people and recognition of rights within the framework of MERCOSUR will maintain their social and human orientation, as envisioned by the governments of the previous decade.

No t e s   1 Treaty of Asunción, 1991.   2 Susana Novick, “La Reciente Política Migratoria Argentina en el Contexto del ME R COS U R,” in El Proceso de Integración MERCOSUR : de las Políticas Migratorias y de Seguridad a las Trayectorias de los Inmigrantes, ed. Susana Novick, Alejandro Hener and Pablo Dalle (Buenos Aires: Instituto de Investigaciones Gino Germani de la Universidad de Buenos Aires, 2005).   3 Vanina Modolo, “La Movilidad Territorial en el Mercado Común Europeo y Mercosureño,” in Migraciones y Mercosur: una Relación Inconclusa, ed. Susana Novick (Buenos Aires: Catálogos, 2010).   4 ME R C O SU R’s Decision CM C 12/91 on facilitations for MER C OSUR citzens.   5 Nora Pérez Vichich, “El M ERCOS U R y la Migración Internacional,” in Migración Internacional y Desarrollo en América Latina y el Caribe, ed. Paula Leite, Susana Zamora, and Luis Acevedo (Mexico City: Consejo Nacional de Población, 2007), 9.   6 Instruction to the competent border agencies for their internal coordination. Decision CM C 9/92, Las Leñas, 27 June 1992.   7 Resolution G M C 43/97.   8 Nora Pérez Vichich, “Las Migraciones Laborales en el Marco del Mercosur,” in Migraciones Laborales en Sudamérica: el Mercosur Ampliado, Estudios sobre Migraciones Internacionales, núm. 63, ed. Ezequiel Texidó, Gladys Baer, Nora Pérez Vichich, Ana María Santestevan, and Charles P. Gomes (Ginebra: OI T, 2003).

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  9 Resolution 48/93 on the creation of an institutional space, Agreement 05/93 on the unified control of entries and exits, Resolution 44/94 on valid documents for transfer, Resolution C MC 58/96 on the entry and exit card model, Resolution 59/96 on centres for consulting personal documents, which intend to centralize the information exchange system, and Resolution CM C 40/98 on the common characteristics required of passports. For more on these issues, see: Gabriela Mera and Lucila Nejamkis, “Migrantes y Ciudadanos. Avances y Retrocesos en el Ámbito del ME R C O S U R,” paper presented at the XXVI Congreso de la Asociación Latinoamericana de Sociología, Guadalajara, 2007. 10 Mera and Nejawkis, “Migrantes y Ciudadanos.” 11 In the negotiations on the framework of the sub-working groups of ME R C O S U R, it was perceived that the problem of worker mobility contained two totally different issues: on the one hand, labour migration (a question linked to long-term residence) and, on the other, cross-border workers (seasonal migration). This two-sided structure largely characterizes the agreements signed in the following years; Justo Corti Varela, “Evolución de la Libre Circulación de Personas en el Mercosur e Impacto en las Políticas Migratorias Nacionales,” in La Libre Circulación de Personas en los Sistemas de Integración Económica: Modelos Comparados, ed. Juana Goizueta, Itziar Gómez, and María Isabel González (Pamplona, Spain: Editorial Aranzadi, 2012), 146. 12 Decision C M C 18 and 19/1999 on the understanding of transboundary neighbourhood transit in the states of Mercosur, Bolivia, and Chile. Decision CM C 14 and 15/2000 on the regulation of the trans-border neighbourhood transit regime. 13 Jorge Martínez Pizarro and María Fernanda Stang, “El Tratamiento Migratorio en los Espacios de Integración Sudamericana,” Papeles de Población 12, no. 48 (2006): 77–106. 14 Decision CM C 48/00, on exemption of visas between member states of ME R C OS U R. 15 Decision CM C 35/00, Consular Cooperation Mechanism between the ME R C O S UR countries, Bolivia, and Chile. 16 At the time of writing, the implementation of this agreement has come to a standstill. 17 Pablo Ceriani Cernadas, “Apuntes Críticos Sobre Derechos Humanos, Migraciones y Libre Circulación de Personas en el MER C OSUR ,” in Derechos Humanos. Reflexiones desde el Sur, ed. Sebastián A. Rey and Marcos E. Filardi (Buenos Aires: Infojus, 2012); Diego Acosta, The National versus the Foreigner in South America: 200 Years of Migration and Citizenship Law (Cambridge: Cambridge University Press, 2018).

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18 Mera and Nejawkis, “Migrantes y Ciudadanos.” 19 1998 Socio-Labour Declaration. 20 Oscar Ermida, “La Declaración Sociolaboral del Mercosur y su eficacia jurídica,” Revista de la Asociación Ius et Veritas, no. 27 (2003). 21 María Fernanda Stang, “El Migrante Unidimensional. El Dispositivo Jurídico Migratorio de la Comunidad Andina de Naciones,” In Migración y Política: El Estado Interrogado, ed. Eduardo E. Domenech (Córdoba, Argentina: Universidad Nacional de Córdoba, 2009). 22 Paola Bergallo, Integración y derechos. La experiencia del Mercosur (Barcelona: Pompeu Fabra, 2008). 23 Juliana Bello, El MERCOSUR y la Protección Internacional: Aplicabilidad de las Políticas Migratorias Regionales a la Luz del Derecho Internacional de los Refugiados, Informe de la Consultoría del Alto Comisionado de Naciones Unidas para los Refugiados, 2015. 24 Migrants with a temporary residence permit that cannot be renewed and fall into an irregular situation. 25 Ceriani, “Apuntes Críticos Sobre Derechos Humanos.” 26 Residence Agreement, Article 9.1. 27 Residence Agreement, Article 9.2. 28 Pérez Vichich, “El M ERCOS U R y la Migración Internacional.” 29 Diego Acosta, The National versus the Foreigner in South America. 30 Decision CM C 04/11, Adherence of the Republic of Peru to the Agreement on residence for nationals of states party to MER C OSUR , Bolivia, and Chile; Decision CM C 21/11, Adherence of the Republic of Ecuador to the Agreement on residence for nationals of states party to MER C OSUR , Bolivia, and Chile; and Decision 20/12, Adherence of the Republic of Colombia to the Agreement on residence for nationals of the party to ME R C O SU R, Bolivia, and Chile. 31 Bello, El MERCOSUR y la Protección Internacional. 32 Ángel G. Chueca, “Libre Circulación de Personas en Suramérica: una Aproximación,” Revista Electrónica Iberoamericana 2, no. 1 (2008). 33 Justo Corti Varela, “Evolución de la Libre Circulación de Personas en el Mercosur e Impacto en las Políticas Migratorias Nacionales,” in La Libre Circulación de Personas en los Sistemas de Integración Económica: Modelos Comparados, ed. Juana Goizueta, Itziar Gómez, and María Isabel González (Pamplona, Spain: Editorial Aranzadi, 2012). 34 Justo Corti Valera, “La libre Circulación de Personas ‘en’ el MER C OSUR : evolución,” paper presented at the Seminario La Libre Circulación de Personas en los Sistemas de Integración Económica: Modelos Comparados, Instituto de Derecho Público Comparado de la Universidad Carlos I I I de Madrid, Getafe, Spain, 28–9 September 2011.

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35 Argentina ratified in July 2004, Bolivia in April 2005, Brazil in October 2005, Chile in November 2005, Uruguay in March 2006, and Paraguay in July 2009. 36 OIM, “Estudio sobre experiencias en la implementación del acuerdo de residencia del Mercosur y asociados” (paper presented at the XIV Conferencia Suramericana sobre Migraciones, 16–17 October, Lima, Peru, 2014); Chile enacted the agreement under Decree 184/2009 of the Ministry of Foreign Affairs, which is still in the stage before the ratification process in the National Congress. Colombia reported that the national standard by which it was incorporated into its domestic legislation is Resolution 4130/2013, Resolution 6588/2013, and Decree 106/2001, while Ecuador ratified the agreement through Official Registry 209 of 21 March 2014, and its internal regulations provided by Ministerial Agreement 0031 of 2 April 2014. Paraguay clarified that by Resolution DGM 179, dated 25 February 2014, it incorporated Decision CMC 4/11 that approves the Adherence of the Republic of Peru to the Agreement on Residence for Nationals of the States Party to MERCOSUR, Bolivia, and Chile, and that through Resolution DGM 968 of 29 August 2014, it does the same with the Republic of Ecuador (Decision CMC 21/11). In the case of Peru, it ratified the aforementioned agreement by means of Supreme Decree 047-2011 RE of 7 April 2011. See Minutes 01/14. Meeting of Interior Ministers, XXXVLII Specialized Migration Forum, 2014. 37 Bello, El MERCOSUR y la Protección Internacional, 36. 38 Pablo Ceriani, “Ciudadanía, Migraciones y Libre Circulación en el Mercosur: ¿Hacia un Paradigma Basado en los Derechos Humanos o la Réplica del Modelo Excluyente de la Unión Europea?” Revista de Derecho Migratorio y Extranjería, no. 30 (2012); It is paradoxical that the residence agreement may enable some states to restrict rights already recognized for their migrant population. This is the case with Argentinian immigration legislation, which recognizes a broad catalogue of social rights for migrants, regardless of their administrative status, while the Residence Agreement recognizes them only for nationals of MERCOSUR states. 39 Decision CM C 64/10, Statute of Citizenship Action Plan. 40 Bello, El MERCOSUR y la Protección Internacional. 41 Ceriani, “Ciudadanía, Migraciones y Libre Circulación en el Mercosur”; Ceriani, Apuntes Críticos Sobre Derechos Humanos. 42 Mera and Nejawkis, “Migrantes y Ciudadanos.” 43 Decision CM C 26/08, Agreement for the implementation of shared databases of children and adolescents in situations of vulnerability in ME R C O S UR and associated States. The first feature of this agreement

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is that it also extends to associated states, that is, Chile, Bolivia, Peru, Colombia, Ecuador, and Venezuela. 44 In all cases, it is essential to correctly identify a minor.In the event that they do not travel with their parents, it is necessary to provide travel authorization according to the legislation of their country of residence. If authorities are not certain about any of the requirements for crossing the border, then the country of reception will not admit the minor, will proceed to return them, and will notify the immigration authorities of the child’s country of origin and, if applicable, to the police and judicial authorities. If the minor travels with their parents, it will be necessary to prove their familial relation before the immigration authorities of the country, as well as proof of graduation and income. Finally, the agreement requires that the involved parties commit themselves to creating a common information registry that logs and manages requests of information on minors whose whereabouts are unknown and to create a computer control system that registers the exit of adults accompanied by minors. 45 I P P D H , Niños, niñas y adolescentes a través de las fronteras del Mercosur (Buenos Aires: I PPDH, 2017); While the Brazilian regulations do not make distinctions between adults and children when requesting and analyzing the necessary documentation to enter their territory, Bolivia requests a series of specific requirements in the case of N, N, and A (niños, niñas y adolescentes) provided in the Agreement, but without referring to the procedure established for children of MER C OSUR and associated states. Uruguayan officials responded by pointing out that for the entry of minors, the presentation of a companion authorization is not required, nor is reference made to the documentation review mechanism agreed at the regional level. 46 Decision CMC 26/08 Agreement for the implementation of shared databases of children and adolescents in situations of vulnerability of Mercosur and associated states. 47 In accordance with the agreement, situations of vulnerability include children and adolescent victims of criminal acts who are subject to a request for the location, whereabouts, or restriction of exit, and who appear in the database. 48 I P P D H , Niños, niñas y adolescentes a través de las fronteras del Mercosur. 49 Agreement RM I 12, Regional Action Guide for the Early Identification of Situations of Trafficking of Persons at Border Crossings of MER C OSUR and Associated States. http://mercosursocialsolidario.org/valijapedagogica/ archivos/hc/3-abordaje/2.mercosur-internacional/1.Deteccion-Tempranade-Situaciones-de-Trata-de-Personas-en-Pasos-Fronterizos.pdf.

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50 See Minutes No. 01/14. Meeting of Interior Ministers. X X X V LII Specialized Migration Forum, 2014. 51 Andean Subregional Integration Agreement (Cartagena Agreement). 52 Stang, “El Migrante Unidimensional.” 53 Jorge Martínez Pizarro, La Migración Internacional y el Desarrollo en la Era de la Globalización e Integración: Temas para una Agenda Regional. Serie Población y Desarrollo, No. 10 (Santiago de Chile: C EPA L, 2000). 54 Art. 1, Cartegena Agreeement. 55 Ibid. 56 Decision 116/77 creating the Andean Instrument for Labour Immigration. 57 Jorge Antonio Quindimil, “La Libre Circulación de Personas en la Comunidad Andina a la Luz del Estatuto Jurídico de la Ciudadanía Comunitaria Andina,” in La Libre Circulación de Personas en los Sistemas de Integración Económica: Modelos Comparados, ed. Juana Goizueta, Itziar Gómez, and María Isabel González (Pamplona, Spain: Editorial Aranzadi, 2012). 58 Stang, “El Migrante Unidimensional.” 59 Decision 397/1996 establishing the Andean Migration Card (TA M), Article 1. 60 Lima Act of the XI I Andean Presidential Council, Lima, 10 June 2000. 61 Decision 503/2001 on the recognition of national identity documents, Article 1. 62 Ibid., Article 2. 63 Ibid. 64 Decision 504/2001 on the Andean Passport is created, Article 1. 65 Acosta, The National versus the Foreigner, 178. 66 Quindimil, “La Libre Circulación de Personas en la Comunidad Andina a la Luz del Estatuto Jurídico de la Ciudadanía Comunitaria Andina,” 218. 67 For the activation of this clause, all that is required is to communicate the alleged circumstance to the member states and the General Secretariat. 68 Quindimil, “La Libre Circulación de Personas en la Comunidad Andina a la Luz del Estatuto Jurídico de la Ciudadanía Comunitaria Andina,” 220. 69 Ibid., 226–7. 70 Acosta, The National versus the Foreigner, 186.

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10 Migration Regimes in South America: The South American Conference on Migration C r i s t i á n D o ñ a R ev ec o a n d   M a y r a   F edder sen

1 In t ro ducti on Until the early 1990s, state actors largely considered migration policy a matter of domestic politics intended to respond to the potential effects of migration on areas of national interest. Thus, granting ­refugee status, or accepting a greater or lesser number of migrants, depended more on the internal politics of the receiving state than the bilateral relationship between sending and receiving nations. The United States’ Bracero Program, or the US’s immigration policy toward Cuba, exemplifies this relationship.1 Only in rare instances, such as in the case of migration policies in the European Community, did these policies result from regional concerns about the importance and complexities of population exchanges.2 The end of the Cold War produced substantial changes in the volume and directionality of international migration flows, which forced immigrant-receiving countries in the Global North to rethink the place of migration in the international system.3 In cooperation with ­migration-relevant international organizations, these countries developed a series of intergovernmental initiatives to discuss migration issues, which focused on establishing mechanisms for the governance and / or management of migratory flows.4 One of these initiatives was the creation of several Regional Consultation Processes (RCPs) in most

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regions of the world, starting in the mid-1990s, with the objective of establishing state-led forums for policy debates about migration and intergovernmental information-sharing. In this chapter, we analyze one RCP, the South American Conference on Migration (CSM for its Spanish acronym or “the Conference”) that is contributing a regional perspective to an important and g­ rowing field of research.5 In the following pages we review the contributions made by the C SM, detailing its development, achievements, and constraints. Although the C SM has been held for almost twenty years, with the sustained participation of all South American countries (with a few exceptions), the effects of this conference on South American migration remain under-analyzed.6 This chapter is divided into four sections. First, we briefly discuss the intersection of international migration and international politics, introducing the historical developments that led to the establishment of the R C P s. Second, we outline the theory of international regimes and how RC P s represent an application of these regimes on the issue of migration. Third, we discuss the emergence and development of the C S M , drawing on the official Conference reports and statements, which are freely available on the conference’s website.7 Fourth, we analyze the three main themes of the Conference. The final section addresses the challenges the CSM may face in the future, including the responses to the Venezuelan migration flows in the region.

2 H is to r ic a l B ac k g ro und of Regi onal Cons u ltat io n P ro c e s s es and the South A m e r ic a n C o n f e r e n c e on Mi grati on The first international organizations specifically dedicated to global migration, the United Nations High Commissioner for Refugees (U N H C R ) and the Intergovernmental Committee for European Migration (ICEM-CIME, currently known as IOM), were established at the end of the Second World War to deal with the massive population displacements that resulted from this conflict. However, Global North governments only became actively concerned about the intergovernmental aspects of global migration in the early 1990s.8 Although the United Nations (UN) had been debating the future “International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families” (Migrant Workers’ Convention) since the late 1970s, only in 1991 did migration, for the first

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time, become part of the agenda of the annual meeting of the then G7 countries.9 International migration, however, was little more than a side note in this meeting’s final declaration. Occupying no more than two lines at the end of the document, member states expressed their concern over the possible impacts of migration: “[M]igration has made and can make a valuable contribution to economic and social development, under appropriate conditions, although there is a growing concern about worldwide migratory pressures, which are due to a variety of political, social and economic factors.”10 A few years later, migration gained much more attention at the International Conference on Population and Development in Cairo, Egypt in 1994.11 This conference, though mainly remembered for its discussions on reproductive rights, made considerable progress on international migration. More specifically, the Cairo Conference promoted the development of strategies to reduce emigration needs, and recommended that governments improve the generation of accurate migration data, which would help to broadly comprehend population movements and to design appropriate and responsive migration policies.12 The Cairo Program of Action, approved at the end of the conference, incorporated many concepts that were already part of the Migrant Workers’ Convention adopted by the UN in 1990. Among others, this Program of Action called governments to ratify the Convention and to organize an international conference on migration. Migrant-receiving countries rejected this proposal to avoid possible political negotiations leading to more precise agreements on this subject. These states agreed instead on a technical conference – as opposed to a politically binding conference – which took place in The Hague in 1998.13 In spite of developed countries’ refusal to participate in high-level negotiations on migration, during the early 2000s a group of international organizations, in coordination with governments, succeeded in establishing three initiatives dedicated to global and multilateral discussions on international migration.14 First, the Swiss government sponsored the Berne Initiative (2001–04), which focused on improving migration governance through cooperation between states.15 Second, the Global Commission on International Migration (2003–05), convened by the Secretary General of the U N , worked on outlining procedures for comprehensive and global responses to migration issues.16 Last, I O M’s International Dialogue on Migration (ongoing since 2001) serves as a forum for states and intergovernmental and non-governmental international organizations on migration issues.17

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The objectives and policies proposed by these multilateral initiatives shared two key principles. First, migration could only be addressed in a multilateral and consensual manner between countries. Second, the foundation of migration governance should be understood as “the coordination between the social perceptions and demands on the causes, characteristics, and effects of migration movements, and the possibilities and intentionality of States to respond to these demands within an effective and legitimate framework.”18 These international efforts are at the core of most R C P s across much of the world. As of late 2021, there are thirteen active, seven dormant RCP s, and three emerging R C P s across the globe, five of them in the Americas. It is no coincidence that the Americas have a larger relative proportion of RCPs. International migration issues have been part of regional economic and political integration processes within this region – in particular within South America – for a long time. The Andean Community of Nations (CAN) incorporated specific mobility policies into its foundational framework as part of the Simón Rodríguez Agreement on Labour Integration through the 1977 Andean Labour Migration Instrument.19 During the 1990s, labour migration was included as part of MERCOSUR, which led to the approval and application of the MERCOSUR Residence Agreement, in effect since 2009. Migration also has, or has had, an important place in other regional integration processes, such as the Pacific Alliance and the now defunct Union of South American Nations (UN AS U R).20 In sum, through the last thirty years, we have seen the emergence, consolidation, and disappearance of various actions, conferences, and initiatives aimed at regionalizing and globalizing political discussions on international migration. Collectively, this has resulted in multiple actions being articulated at the global and regional levels that address various topics ranging from the movement of refugees, migration’s effects on development, the environment, and border transit, among many others.21 In the following section, we discuss the shared structures of RCPs, using the concept of international regimes as a background.

3 In t e r n at io n a l Regi mes an d R e g io n a l C o n s u ltati on Processes The need to make decisions on specific issues in a context of multilateral cooperation, is not a new phenomenon. The 1970s saw the rise of significant multilateral cooperation to address massive shifts in the

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rules governing international economies, largely a consequence of changes to the gold standard and the international oil crisis.22 These specific changes in interstate relations led to the search for new concepts that would explain this type of multilateral cooperation. Krasner called them international regimes and defined them as “sets of implicit and explicit principles, norms, rules and decision-making procedures around which actors’ expectations converge in a given area of international relations.”23 This definition of regimes does not address the external or bureaucratic structure of multilateral cooperation. Instead, it expands the analysis of international governance by focusing on the underlying principles influencing government behaviour. Researching regimes, thus, implies also questioning the actions of governments in these topic-specific sites of interaction. International regimes are composed of an overarching normative framework that defines their operation. This framework comprises actor-defined principles and norms grounding the type of actions and behaviours deemed acceptable by the collective. Thus, in a broad sense, international regimes can be understood as institutions: they maintain recognized guidelines that define the rules of the game and facilitate cooperative agreements to achieve the objectives of the different governments that participate in them.24 Regimes need to meet four conditions and / or functions to operate successfully.25 First, participating governments collectively share burdens, because each individual contribution to the regime’s common goals depends on the willingness of other members to contribute as well. Second, regimes provide information to governments. This shared information is fundamental for making decisions on issues extending beyond the borders of individual states. This information allows states to engage in cooperative action on transnational issues, avoiding the need for unilateral action. Information sharing also makes it easier to identify common interests, which can lead to the development of agreements based on those interests. Third, successful regimes create a space for discussion on shared interests without the pressure of reaching binding agreements. Finally, international regimes bring a certain stability to relations between states, allowing for the continuity of certain policies despite changes in government administrations. Global migration regimes have not had the pre-eminence of similar initiatives on trade (GA T T ), international finance (I M F ), or the economy (World Bank).26 The three main global international organizations working with refugees and migrants were originally conceived to

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establish bilateral and multilateral cooperation on issues of international labour migration (I L O ) or to manage refugee flows and developing a global system of protection for forced migrants (I O M and UNHCR). In the last twenty years, these three organizations have become increasingly involved in developing new migration-related initiatives, gradually introducing migration issues into various processes of regional integration. Post-Cold War “optimism” led to the assumption that many of the elements necessary to establish a global migration regime would already be in place by the year 2000. However, institutionalizing such cooperation has yet to materialize.27 In fact, the idea of a global migration regime was not even included in the development of the Global Compact for Migration.28 The stark contrast in the political, economic, and diplomatic power of immigrant-receiving countries compared with immigrant-sending countries, as well as the general complexity of the migration phenomenon, has made global governance an illusory goal. Given this reality, governments and international organizations ­established regional or thematic cooperation regimes to facilitate agreements on the governance and regulation of migration flows.29 In reaction to the complexity of state-to-state relations and the migration phenomenon, regional migration regimes have become the arena for countries to interact and discuss migration issues. On the one hand, the aim of these processes has been to move discussions on migration policy and procedures from a state-focused approach toward a multilateral approach, allowing coherent interstate policies to develop to govern migration. On the other hand, their objectives have been to control and organize migration flows under the notion of migration management or migration governance. Finally, an underlying objective of these regimes is that these spaces can eventually serve as building blocks on which new international migration regimes can be built in the future.30 The most common of these regimes are RCP s. By definition, RCP s are non-binding, informal groups that involve government representatives, international organizations, and civil society actors, whose objective is to exchange information and experiences on topics of common concern related to international migration. They are designed and led by governments, although the political ranking of participants might vary. Participants meet periodically, and during those meetings develop regional plans to act on various issues and to outline the foundations for establishing multilateral agreements.31 Finally, the central

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theme of the RCPs is flexibility and can change depending on the needs of participating states. While most R C P s are formed by countries within a specific geographic region, themes of discussion might change according to the needs of the member states.32 R C P s’ member states have managed to form a basic structure by establishing technical secretariats that allow their continued operation. Official meetings are usually held annually and during the period between sessions, states engage in specialized seminars on particular topics, such as migration data analysis or international migration law, and hold meetings in preparation for the annual session. Technical secretariats coordinate the progress on the agreements made in each annual meeting and oversee the participation of international organizations. This organization allows the responsibility of assessing the agreements’ advances to deflect from an individual state to the process itself.33 This very structure, however, hides the R C P s’ main institutional weakness. Compliance with non-binding agreements depends on how much migration-related sovereignty each member state is willing to forego, because there is no punishment if members do not comply with, or do not carry out, the agreements in a timely manner. Agreements, however, might not remain a priority for the government or are held back by their congresses, becoming irrelevant, or their implementation might be considerably delayed.34 A second weakness is that R C P s do not have their own funding, as other international organizations do. Annual meetings and other activities are usually financed through contributions from member countries, international financial system bodies, or other donors. These financial constraints limit the RCPs’ actions, and in some cases might even make it difficult to consistently hold meetings. In sum, lack of funding and political will has meant that, in certain cases, action plans and agreements do not have any effects on migration flows.35 Despite these difficulties, it is possible to identify common topics across integration processes as well as milestones reached through discussion in various forums or conferences. These accomplishments include cooperating in the collection of migration statistics, developing migration policies in countries that had no existing policies, or outdated policies, such as the case of new refugee or asylum policies.36 In addition, IOM recognizes that consensus has been built for protecting the fundamental human rights of migrants, preventing, and fighting against, irregular migration and human trafficking, as well as providing assistance for voluntary return as a strategy to reduce irregular

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migration.37 We now turn to our description and analysis of our case study, the South American Conference on Migration.

4 T h e S o u t h A m e r ic an Conference o n   M ig r at io n : A n Overvi ew The South American Conference on Migration, formed by this region’s twelve independent states,38 has its origin in the South American Meeting on Migration, Integration and Development, held in Lima, Peru in 1999. The objective of this meeting was to “generate and coordinate initiatives and programs to promote and develop policies on international migration and their relationship with regional development and integration.”39 From this meeting arose the three principles that are at the core of the CSM: migration is a central component of regional integration; accepting “the undisputed link between the economic and social development of countries of origin and migration;” and governments need to commit to respecting and enforcing migrants’ human rights.40 Besides the member nations already mentioned, states from outside South America and international organizations are allowed to attend as observers (see table 10.1 and table 10.2).41 While close to twenty states from different regions have attended CS M meetings, officials from Mexico, Canada, and the United States have been the most frequent participants and other Central America and Spanish Caribbean countries have participated at least once. Representatives of the United Nations Economic Commission for Latin America and Caribbean’s Latin American and Caribbean Demographic Centre (CELADE – ECLAC’s Population Division) have attended the majority of meetings. The United Nations has also been represented by several of its other specialized units, such as the International Labour Organization (I L O ), United Nations High Commissioner for Refugees (U N H C R ), U N E S C O , U N I C E F , United Nations Fund for Population Actions (UNFPA), the United Nations’ Office of the High Commissioner for Human Rights (OHCHR), and the Committee on Migrant Workers (CMW). Several regional integration processes, and regional and global organizations, have also participated; among them, the Andean Community of Nations (CAN), MERCOSUR, the Organization of American States (OAS), the Latin American and Caribbean Economic System (S E L A ), and the Inter-American Development Bank (IDB).

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Table 10.1 Participant countries in CSM meetings* Participant countries Mexico Canada United States Spain, Panama, Dominican Republic, Costa Rica El Salvador, Honduras, Italy, Switzerland, Australia Nicaragua, Haiti, France, Cyprus, Cuba, Great Britain

Number of meetings attended 9 6 4 3 2 1

*Based on lists of attendees available for each meeting.

Table 10.2 Participant international organizations in CSM meetings* Participant organizations C ELADE – ECLAC Population Division

Number of meetings attended 10

ILO; UNH CR; Andean Community of Nations (C A N)

9

UNESC O

8

OA S; Ibero-American General Secretariat (SE G I B ); UNI C E F

3 2

SELA ; International Committee of the Red Cross (I C R C ); MER COSUR; UNFPA IA DB; OHCHR; Latin American Association of Development Promotion Organizations (ALOP); Regional Conference on Migration (Puebla Process); European Union; C M W ; International Air Transport Association (IATA)

1

*Based on lists of attendees available for each meeting.

Last, close to 110 different civil society organizations institutions have attended and actively participated in the CSM’s annual meetings. Most of them have been local organizations attending only when the meetings are in their own country. On the other hand, the Catholic Church has been represented in every meeting by some of its migration-related initiatives, such as the Scalabrini International Migration Network (SIMN) – represented by the Centre for Latin American Migration Studies (CEMLA) and by the Chilean Institute of Catholic Migration (INCAMI) – the Latin American Episcopal Council (CELAM), and the Jesuit Service on Migration. The first official CSM meeting took place in Buenos Aires, Argentina, in 2000. It took four years, however, for the Conference to develop

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its first draft of regulations and procedures. This were presented and discussed for the first time at C SM I V in Uruguay in 2003; however, these proposed regulations were not approved until CSM XVI, which took place in Paraguay in 2016. Thus, during most of its history, CSM meetings have operated under a set of customary practices. CSM’s current, former, and future presidents (the Troika in Spanish) organize the meetings, based on the agenda discussed and agreed by the members during preparatory meetings. IOM’s role is to be the Conference’s technical secretariat, where it advises and supports the work carried out by C S M ’s pro tempore presidency and the Troika. The South American Observatory of Migration (OSUMI) compiles all the documents produced in each of the meetings.42 The Conference’s overall agenda is based on guidelines established in the South American Human Development Plan for Migration (P S D H M for its Spanish acronym), containing the member-states’ shared principles on migration governance for South America.43 States began discussing the P SDHM in C SM I I I in Ecuador in 2002, finally adopting it at CSM X, which took place in Bolivia in 2010). Five years later, in 2015, at CSM XV in Chile, member states voted to update the PSDHM, yet, to date, no concrete changes have been made. To explore CSM’s general agreements in more detail, we now present the main results of each meeting, using its final declarations as a source. The first meeting, held in Argentina in 2000, expanded on the role social and economic changes of the late 1990s in the region played in the increasing number of intra- and extra-regional migrations. Member countries agreed that the situation called for multilateral dialogue mechanisms to promote the coordination of policies and actions within the region, with the aim of ultimately strengthening pre-existing regional processes of integration and development. This, however, was only possible if the countries modernized their migration management strategies and fortified the agencies and institutions that had jurisdiction over these matters. In this meeting, member states also agreed on three aspects leading to CSM’s institutionalization. First, they established that, starting in CSM II, the Conference would become a regular forum dedicated to the coordination and consultation of migration issues for South American countries, to be coordinated by a pro tempore secretariat or presidency led by the incoming host nation. Second, IOM was officially asked to become the technical secretariat of the forum in charge of ensuring its operation and keeping its records.44 This included the request to prepare a state-of-the-art diagnostic on

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current regional migration flows and policies. Finally, the attending states agreed to invite Suriname and Guyana to participate in the forum. A year later, C S M I I (Chile, 2001) focused on strengthening the Conference and declared it a permanent organization dedicated to the coordination and development of regional policies. At this meeting, members agreed to promote collaborative actions to ensure migrant rights were integrated and exercised, coordinate consular policies, and combat the trafficking of migrants. To achieve these goals, the CS M sought “to incorporate organized civil society and specialized international organizations in these actions.”45 Finally, the IOM was tasked with organizing a consultation meeting to develop a technical plan of action and determine the necessary inputs in preparation for the ­following year’s conference. The importance of a continuous forum on migration was reinforced in C SM I I I (Ecuador, 2002). Member states also restated their commitment to respect and value the human rights of migrants, particularly migrants’ social, economic, political, and cultural rights. What is more, members agreed to adopt the Plan of Action on International Migration in South America as the CSM’s principal work plan (CSM’s Quito Plan).46 Unlike the P SD HM, which frames the main principles of the Conference, the Quito Plan established the immediate tasks that member states had agreed to pursue. CSM III also voiced the need to carry out technical midsession meetings, which have been reiterated before each annual session with the objective of preparing the contents to be discussed during the following year. In C SM I V , which took place in Uruguay in 2003, members recognized their determination to consolidate the South American forum as the region’s principal political platform for generating and coordinating international migration initiatives and programs and their relationship with development and regional integration. During this meeting, states reaffirmed the Quito Plan and identified three goals; first, to promote and develop policies, programs, and actions, which sought to facilitate the circulation and residence of nationals of countries within the region; second, to coordinate actions that allow for the assistance and protection of the human rights of migrants, especially of South American nationals; and third, to promote the inclusion of migration as a relevant factor in the various political, economic, and environmental bilateral and multilateral negotiations developed by South American governments. Members also agreed to request that IOM assess programs and projects that would assist in implementing

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the Quito Plan effectively. Reinforcing the Conference’s understanding of migration as part of larger regional integration processes, the member states agreed to present the meeting’s final declaration at the joint MER C OSUR and C A N summit that took place at the end of 2003.47 Finally, written in the final declaration of CSM IV as well as in that of the previous meeting, is an ongoing request to the relevant international organizations, such as the Inter-American Development Bank, to provide funding for the Conference. During C S M V in Bolivia in 2004, the member states finally approved the Quito Plan of Action, although modifications to the original plan had already been introduced in 2003 and 2004. Also discussed during this session were possible changes to the structure of the conference. This included a debate on a declaration of migration principles and an analysis of a proposal to institutionalize the Conference. While the same nation-states are represented, this proposal did not come from CSM, but from MERCOSUR and the CAN.48 The lack of a stable budget, one of CS M ’s main weaknesses, made it difficult to organize the conference, making the postponement of CSM VI scheduled in Paraguay in 2005 inevitable. The meeting finally took place a year later in the same location. The main topics discussed on CSM VI, which was held in Paraguay in 2006, were the migration-related international obligations ratified by the member states. These obligations included countries’ commitments to respecting human rights as stipulated in various treaties, resolutions, and rulings issued by the United Nations, the Organization of American States (O A S ), and other regional forums. For these nations, acknowledging their obligations reaffirmed the valuable social, economic, political, scientific, and cultural contributions that migrant populations made to destination countries. Thus, the need to ensure migrants’ effective integration into host societies was paramount. In addition, states agreed to include the topic of migration and development in the agenda of bilateral, regional, and international meetings. Finally, states emphasized the role of international organizations in providing them with technical assistance on migration matters, as well as their assistance in continuing the Conference. CSM VII, held in Venezuela in 2007, revisited some of the themes discussed the previous year. In particular, states reinforced their commitment to human rights and to the positive impact of migration in development. During this meeting, members also insisted on the need to update the Quito Plan by implementing review mechanisms to ensure it could continue to be improved and applied.

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In response to the European Union’s approval of the Return Directive (Directive 2008 / 115 / E C ),49 CS M states grounded the discussion of migrants’ human rights on the fact that those who migrate are human beings – not just workers, for example – and the multi­ dimensionality of this process. These agreements were central to C SM V II I , which took place in Uruguay in 2008, and CS M I X, held in Ecuador in 2009, together with a direct call to the European Union to include the human rights of migrants in their policies, thus rejecting the Return Directive. The C SM states’ main criticism of this directive was the criminalization of immigration embedded in its language. The South American response also requested that receiving countries (i.e., the European Union) address the inequalities between sending and receiving countries and develop policies to prevent it; to consider sending, transit, and receiving countries in immigration policy development; and finally, to reconsider the Return Directive. A second central theme in both C S M V I I I and C S M I X was the concept of South American citizenship, a central component of U N A S U R ’s 2008 Constitutive Treaty.50 South American citizenship was introduced as a process toward consolidating a common identity, by progressively recognizing the rights of South American nationals within and across the region. This is an important example of content dissemination among international forums, in this case between U N A SU R and the C SM. Two other relevant agreements made it into C S M I X ’s Final Declaration. First, member states committed to analyzing proposals for a South American Human Development Plan of Migration (PSDHM) that would define the principles of migration governance for the region. This Plan, originally proposed in C S M I I I and not discussed for seven years, was expected to replace the 2002 Quito Plan. Second, states reinforced the importance of civil society for the conference. Civil society organizations had been organizing parallel sessions to the conference since CSM I, and, since CSM II, had formally become observers. The following year, in CSM X, which took place in Bolivia in 2010, the states continued to emphasize the notion of South American citizenship. In addition, member states gave priority to the development of the PSDHM. In this conference as well, states finally adopted CSM’s declaration of migration principles and general guidelines. These documents coalesced the main themes that the states had been discussing since the beginning of this RCP: the promotion and defence of human rights, the integrity of the migration processes, the condemnation of

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human trafficking, and the need to coordinate regional migration policy in South America. Finally, states attempted to revitalize the South American Observatory on Migration (OS U MI ).51 The initial objective of this program, proposed at C S M I I , was to serve as an information, exchange, and coordination platform based on ongoing and consistent analysis. For many years, OSUMI was only a repository of general information about the conference and its meetings. Now it included reports with migration trends by country and in the region, and reports on the social effects of migration. While being an I OM member was not a prerequisite to hosting a meeting, Brazil – the only country in the region that was not an I O M member during the early years of the conference – hosted its first meeting (C S M X I ) in 2010, shortly after joining I O M . During this session, member countries reaffirmed human rights as a priority and denounced extra-regional immigrant receiving countries’ migration policies that violated those rights. In particular, member countries condemned the recently approved laws in the United States criminalizing irregular migration status. In turn, CSM members renewed their efforts to consolidate the construction of a South American citizenship and to incorporate the conference into the institutional structure of USAN. And, the pro tempore presidency continued its efforts to present the final declaration to other regional and multilateral forums. After ten years, the conference returned to Chile in 2012. In C S M  X I I , the countries introduced the concept of migration governance and focused on developing follow-up agreements to the P S D H M . Countries also adopted a new structure for C S M ’s Final Declarations. State agreements were going to be organized according to four axes: 1) progress related to the P S D H M ; 2) processes of regional integration; 3) the strengthening of immigration governance; and 4) C S M ’s international projection. The three conferences held between 2013 and 2015 – CSM XIII in Colombia, CSM XIV in Peru, and CSM XV in Chile, respectively – were focused on further developing the four axes identified above. In CMS XIII, the states highlighted the importance of establishing migratory regularization processes and recognized the emergence of new immigration flows to the region. In CSM XIV, member states analyzed “new” challenges to mobility in the region resulting from human ­trafficking and illegal smuggling activities, the mobility of unaccompanied minors, the connection between migration and climate change, and the increase of Haitian migration to the region. In C S M X V ,

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member states agreed to give more emphasis to addressing access to justice (initially brought up in C S M V I I I ) and a stronger focus on gender issues (cited for the first time in CSM IV). States also called for a more robust participation of civil society and of local governments as an element of migration governance. Finally, during these three conferences, member states debated the creation of a shared code or rules of procedures. This code was finally approved at CSM XVI, which took place in Paraguay in 2016. The theme of CSM XVI was “Towards Free Movement.” The aim of this meeting was to emphasize the right to migrate and empower migrants as rights-bearing subjects. Internal criticism of CSM’s predominant focus on migration governance, which marginalized the right to migrate, led to the discussion being focused on this theme.52 In this conference, the term “governance” shifted to “management,” adding concerns about consular, border, and domestic policies. This change in terms has persisted as of the publication of this chapter. In CSM XVI, the states also agreed to change one of the four organizing axes of the final declarations; PSDHM follow-ups changed it to the human rights of migrants. Also, while discussion about updates to the PSDHM had begun a year earlier in CSM XV, it was in CSM XVI when this topic became a core point of debate. However, by CSM XVIII in Bolivia in 2018, the last meeting as of early 2021, the countries had not yet reached an agreement on possible modifications to the Plan. The organizing theme of CSM XVII, which was held in Uruguay in 2017, was “Inclusion and Integration of Migrants Beyond Territorial Borders.” As part of this theme, states continued working on establishing a South American citizenship. This was seen as the culmination of the Conference’s principles and a step toward the full exercise of human rights of all “South American citizens and of migrants in particular.”53 States also continued the debates on updates to the PSDHM and agreed on a shared position supporting United Nations’ Global Compact for Migration. This last point is another example of the weaknesses of CSM. While most of the countries agreed to participate, in December 2018, hours before final approval, Chile decided not to sign the Compact. Brazil withdrew from it in January 2019 shortly after Jair Bolsonaro was inaugurated as Brazil’s president and just a few weeks after the Compact was endorsed by the UN General Assembly. Finally, the last meeting, as of January 2021, was CSM XVIII, held in Bolivia in 2018. The subject of that Conference was “South American Citizenship: A New Culture about Free Mobility Aiming at

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a Universal Citizenship.” The theme underscored the importance of migrants’ human rights as a condition for regional and universal citizenship. Along the same lines, member states restated the relevance of MER C OSUR ’s Residence Agreement, initially signed in 2002. In this brief summary of the agreements reached in CMS’s meetings we can observe that South American nations have reached a consensus on a few central themes: the contribution of migrants to sending and receiving countries, the rejection of restrictive measures in extraregional receiving countries, the need to incorporate the fight against human trafficking and smuggling on migration-related forums, the possibility of developing a South American citizenship, the defence of migrants’ human rights, and an ongoing commitment to institution­ alize C SM and connect it with other regional integration processes, such as MERCOSUR and the CAN. In the following section, we review C SM’s progress and limitations.

5 C o m m it m e n t s a n d C onstrai nts of the S ou t h   A m e r ic a n C o n f e r e nce on Mi grati on Although C S M ’s P S D H M and the organization’s relationship with other regional forums have been under constant scrutiny and revision, we can argue that, despite some modifications, there are three central themes at the core of C S M ’s work: the recognition of the positive effects of migration, the need to establish shared and coherent migration policies among member countries, and respect for the human rights of migrants. In this section, we analyze the agreements reached by member states on these three topics.54 5.1 Recognition of the Positive Effects of Migration One of the most distinctive features of the CS M is the group’s strong consensus that migrants make valuable contributions “to the social, economic, cultural and educational development of host countries, and that migration dynamics have positive effects for the wellbeing and development of countries of origin.”55 In CSM V (Bolivia, 2004), countries reached a basic consensus on this theme, which became more precise throughout the next meetings. Initially, as the final declarations attest, countries shared a common concern for the increase in migration flows (CSM I, 2000). The following year, the declaration signalled a general preoccupation with the situation of South American nationals residing abroad (C S M I I , 2001). This was ratified in Ecuador

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(CSM III, 2002) where countries agreed on the importance of the effects in the countries of origin of emigration to developed countries. Originally centred on the economic effects of emigration, discussions on the theme became broader in CSM IV (2003). States recognized in the final declaration that there was an important relationship between development processes and international migration. This relationship was understood as an opportunity for cooperation and collaboration based on the economic, social, and cultural contributions of migrants and their families. In C S M V (Bolivia, 2004), the countries took a further step by linking the migratory process to the historical reality of Latin America; thus implicitly recognizing that migration constituted South American nations’ identities.56 Although members lamented the loss of skilled labour as a consequence of emigration, by the 2006 meeting and beyond many of the countries that made up the C SM were not only countries of migrant origin, but also countries of transit and destination. This generated a paradigm shift in evaluating migration effects. It also created new relationships between member states. As a result, subsequent meetings have emphasized the concept of reciprocity and the need to coordinate and / or agree on migration policies and involve local communities in these processes. The enactment of restrictive immigration policies in Europe during 2008, and in the United States in 2009, led CSM countries to highlight the multidimensional nature of migration. Member states adopted a more active attitude by committing themselves to “contribute to the promotion of [the] capacities of our emigrants as political, economic, cultural, and scientific actors, in both host and destination societies.” A call was also made to “guarantee respect for diversity and promote intercultural processes within our [C S M member] countries.”57 From 2010 onwards, the conviction that migrants contributed “to the social, economic, cultural, and educational development of host countries, and that migration dynamics have positive effects for the wellbeing and development of countries of origin”58 had gained full recognition and risen to the level of a mandate. For these notions to be put into practice, the CSM declared the need to “implement policies and programs for linking and promoting the capabilities of our nationals abroad, which reinforce their contribution to the economic, social and cultural development of their country of origin. [And to] recognize the rights of different migrant groups that coexist within [member] states and these groups’ contributions to the process of migrant integration and intercultural development of their host countries.”59

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Despite these seeming advances, since C S M ’s formulation of the PSDHM in 2010, the link between migration and development has not been translated into explicit strategies or concrete actions but, rather, appears as an implicit understanding. Because of the complex relationship between migration and development, these interrelated issues have ultimately been subordinated to other principal elements of the PSDHM. Since meeting XII, the core elements of the PSDHM have dominated the agendas of the annual meetings. These core elements include: 1) progress related to the P S D H M and, after 2016, to the protection of migrants’ human rights; 2) processes of regional integration; 3) strengthening immigration governance and, after 2016, migration management; and 4) the international projection of the CSM. The preceding section makes clear that, regardless of individual states’ understanding of the migration phenomenon, a common issue woven across all these conferences has been the recognition of the valuable contribution that migrants and their families make toward their countries of origin, transit, and destination. Yet this recognition of migrants’ positive influence has not translated into concrete actions. Given the diversity of CSM countries and their mutual understanding of the positive impact of migration, one might expect to find that migration policies are homogeneous across member states. However, domestically, this has not occurred.60 While it appears that the language espoused by the C S M has permeated regional government discourses, which show a more liberal inclination toward migration, government migration policies have not kept pace with their migration-­ related rhetoric.61 In addition, government responses to the Venezuelan displacement crisis demonstrate that CSM’s members have not used this forum to coordinate collective actions.62 5.2 Shared and Complementary Migration Policies between Countries The C SM is predicated on the belief that common problems can be most effectively addressed through open and multilateral dialogue among the South American countries. The underlying assumption was that cooperation could facilitate the coordination of policies and actions, which would, ultimately, strengthen ongoing integration and processes of development. This open dialogue was maintained during all annual meetings and was concretized through specific collaborative efforts at the regional or

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global level or through individual countries’ initiatives at the Conference. In the CSM’s early years, and given the predominantly emigrating nature of South American countries, efforts were aimed at strengthening consular policies.63 As migration patterns changed over time, policy harmonization efforts have focused on more specific issues, such as the smuggling of migrants; human trafficking; the development of border integration zones; policies of return and the creation of linkages with nationals abroad; special attention required for unaccompanied women, children, and adolescents; and, more recently, the inclusion of new topics such as climate change and access to justice.64 Since the approval of the PSDHM, the efforts of member states, and of the I O M , have been predominantly oriented toward developing mechanisms for the “governance” or “management” of migration. CSM member states have produced reports on best practices and have also shared experiences on various topics, with the objective of moving toward harmonizing regional migration policies and regulations. This region-wide coherence has been pursued both through individual countries’ internal policy revisions and externally, through the signing of international treaties and countries’ greater participation in international forums. Raising the profile of the C SM in other regional and global forums increases the possibilities for sharing experiences and cooperation strategies.65 Although regional coherence is a long-term goal, which to date has only been manifested in a few specific policy areas, the adoption of global policies has remained elusive.66 However, it can be argued that the C S M has spurred an accumulation of knowledge, which may help explain the consensus that has formed for the recognition of human rights of migrants and their families.67 The following section delves more deeply into the latter issue. 5.3 Human Rights of Migrants Since CSM I (Argentina, 2000), member countries have agreed to come together to guarantee the protection, defence, and promotion of the rights of migrants. That, however, was an abstract agreement and was not connected to any international human rights treaty ratified by these countries. A year later, at CSM II (Santiago, 2001), states already began committing themselves to guaranteeing human rights within the framework of the international conventions they had signed or ratified. During CSM III (Ecuador, 2002), states went even further, affirming

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“unrestricted respect”68 for human rights, and also pressured the international community to preserve and promote these rights. This same language was reiterated from CSM VI (Paraguay, 2006) onwards, including explicit references to several international treaties on human rights. These included, for example, the Universal Declaration on Human Rights; the American Convention on Human Rights; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; and the Convention on the Elimination of All Forms of Discrimination Against Women, among others, and were referenced in all the final declarations. Notwithstanding the importance of the recognitions outlined above, the meaning that states have granted to the corpus iuris of human rights remains unclear. In C SM I I I (Ecuador, 2002) the final declaration mentions due process and the need to prevent people detained for violating immigration laws from being treated like ordinary criminals. At the same conference, states agreed upon and committed to ensure “the respect and validity of the human rights of migrants, particularly those related to the social, economic, political, and cultural spheres.”69 C SM V I (Paraguay, 2006) also mentioned the concept of extended citizenship, which is shown in the right to suffrage granted to immigrants at origin and destination countries only “when the legislation permits it.”70 The lack of shared criteria about the meaning and extension of human rights’ protections became evident in CSM IV (Uruguay, 2003), where countries declared that the human rights of migrants are a “legal obligation and an ethical basis for the human development of the population of the South American countries.”71 Several questions arise from this statement. For example, are human rights a limit to the authority’s prerogatives? Should human rights be considered an instrument for development? Are all inhabitants, regardless of their migratory status, holders of these rights? Alternatively, should human rights work only as guiding principles? The protection of human rights holds a predominant space in the South American Human Development Plan for Migration (PSDHM), ratified in CSM X (Bolivia, 2010) after ten years of discussion. In that document, human rights were identified as a central principle, different from the right to free movement and the guarantee of full citizenship. In addition, it seems very ambitious for states to have agreed to simultaneously protect the rights of immigrant-persons, social equity, gender, and interculturality. In the international arena, each of these dimensions covers specific treaties and obligations, but in this

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document, they are a part of a common principle bundled under the non-discrimination clause. The PS DHM was short-lived because subsequent meetings did not develop it further. In C S M X I (Brazil, 2011), which resembled CSM VIII (Uruguay, 2008), there were no new commitments, simply the same promises being repeated: “prioritizing human rights without discrimination, increasing coordination, and reinforcing the condemnation against the policies that violate the fundamental rights of migrants, and limiting immigrants’ access to education, health, reproducing racists, xenophobic and discriminatory attitudes.”72 The open reference to the human rights in force and the allusion to international instruments undoubtedly represented great progress by the Conference. However, the lack of consensus over the meaning of human rights was a significant shortcoming.73 To put that in perspective, C SM member states only committed to abide by the obligations that they had already accepted. States’ recognition of human rights is not new, and it is similar to how they reacted when discussing the binding nature of the Global Compact for Migration.74 After the CSM XI and CSM XII (Chile, 2012), the civil, political, and social rights triad disintegrated.75 The human rights of immigrants were only about non-discrimination and equal treatment and about the exercise of social rights. Discussion about political rights remained inconsistent. The exclusive emphasis on education and training after 2013 seems to show a retreat from previously ambitious promises. Alternatively, it could be argued that states had come to recognize the challenges of implementing human rights in their domestic policies, thus downplaying the Conference’s aspirational and celebratory language.76 The conferences in Paraguay (C S M X V I , 2016) and in Uruguay (CSM XVII, 2017) reiterated the commitments previously established in C SM X V (Chile, 2015) and C SM XI V (Peru, 2014). In Paraguay, member states insisted on their promise to “recognize the immigrantperson as a subject of rights”77 and the importance of access to justice for a real exercise of those rights. They reintroduced the importance of promoting and protecting immigrants’ right to vote. In Uruguay (2017), member states took the initiative of promoting regularization through MERCOSUR as a recognition of the necessity of a continued effort to construct South American citizenship. In this Conference, extended citizenship was portrayed as an ideal result, which would result in immigrants being fully integrated into their host societies. The PS DHM can be read as either the culmination of the CS M or the beginning of its demise. Together with a lack of consensus about

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the meaning of human rights, CSM member states never agreed on the specific mechanisms by which nation states could fulfill their promise to promote and protect human rights. As a result, member countries have been left to address these issues on their own. However, without ignoring the P S D H M ’s conceptual contributions, it is important to keep in mind two points: 1) countries had reservations about the binding obligations contained within the Plan; and 2) governments’ responsibilities were influenced both by individual countries’ development trajectories as well as those of the region as a whole. Although the P S D H M defined various strategic guidelines, little progress has been made on concrete actions. The P S D H M asserted that, to promote and protect the human rights of migrants, it was necessary to 1) achieve normative coherence among the countries of the region, 2) ratify the Convention on Migrant Workers (C M W ), 3) open a dialogue, and come to a consensus, with relevant civil society actors and, 4) increase the availability of migration information and national and inter-regional institutional coordination. Looking back, except for sharing and producing information the previous goals have been partially achieved. In fact, for the first goal, as we explained in the previous section, normative coherence has only been achieved on very specific topics. As for the CM W treaty ratification goal, it is not possible to know exactly whether ratification has been a consequence of the CSM’s involvement. Going back to the dates of ratification, Bolivia and Colombia entered the CSM having ratified the treaty beforehand. In addition, Suriname, Guyana, and Brazil are not members of the treaty. During the CSM’s operation, however, the treaty was ratified by Argentina (2007), Chile (2005), Ecuador (2002), Paraguay (2008), Peru (2005), Uruguay (2001), and Venezuela (2016). Last, in the third goal, the participation of civil society has remained inconsistent. Although the role that civil society plays in migration processes and CSM discussions have been debated since the inception of the conference, civil society organizations have voiced significant criticism of the functioning of the CSM. In 2013, an open letter signed by diverse civil society organizations was sent to the IOM during that year’s meeting, decrying the lack of mechanisms that would allow them to meaningfully and permanently participate. A similar concern was reiterated before C SM X I V .78 Seen from a distance, the South American region appears to be a fertile ground for developing and promoting human rights. However, a more granular analysis reveals contradictions in governments’ fulfillment of  the Conferences’ commitments. Moreover, while the C S M has

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strengthened the region’s position on human rights issues, it has also introduced new challenges. Its attempts to confront migration have revealed the inherent difficulty of adopting a common position without falling into demagogy, the risk of the instrumental use of migrants to achieve countries’ development objectives, and the gap between member states’ discourses and practices.79 Furthermore, as previously explained, the Conference’s human rights discourse was not translated into real responses when action was required. In fact, most states favoured domestic interests when dealing with the Venezuelan displacement crisis.80 The topics presented above have made up the majority of C S M discussions, however they are not the only topics to have been addressed by the Conference. A subject that has emerged at various moments, which has been considered relevant since the CSM’s inception, is the protection of nationals abroad. Also, other concerns related to the need for consular protection activities have also been voiced.

6 C o n c l u s i ons The diverse characteristics of the CSM make it an intriguing object of study. To begin with, the organization has placed intra-regional migration, the development of joint policies on migration, and the protection of migrants’ human rights among its highest priorities. Second, it is composed solely of South American countries, which allows for a fairly horizontal relationship among member countries. The CSM has made important achievements throughout South America, including positioning itself as the main site for discussing migration issues in the region.81 Its most significant accomplishment has been its ability to establish itself as a legitimate forum for exchanging information and opinions on regional migration processes. At the same time, it has served as a space for generating a preliminary consensus among member states, in particular on recognizing migrants’ contributions to host countries, and needing to respect the rights of migrants and their families. However, one of the C SM’s strengths is simultaneously one of its principal weaknesses. Since member countries are relatively similar in size and relevance, no country dwarfs another in terms of resources or power, as is the case with other regional processes, such as the Puebla Process that includes Belize, Canada, Costa Rica, Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama, and the United States. While the relative parity between South American countries has facilitated successful agreements – without any one country feeling dominated or constrained by another – these

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countries’ lack of stature has undercut both the political and financial development of the C SM. While the C S M deserves recognition as a highly relevant platform for sharing information and best practices of domestic and international migration policies and programs, there must be sufficient political will to sustain this process or it will likely lose relevance and be subsumed under other existing organisms. At the moment, it appears that the Conference lacks the capability to respond quickly and effectively to crises that emerge, such as the massive out-migration of citizens from Venezuela. Although this emigration has been increasing rapidly since 2015, it was not until September of 2018 – outside the context of the Conference – that the Ecuadorian government called for an urgent meeting with the countries of South America, plus Costa Rica, Mexico, and Panama, to discuss this ongoing emergency. The final declaration of this meeting, which did not feature the participation of Venezuela, only made brief mention of the C SM. Section 16 of this declaration stated the need to “strengthen the role of the Andean Community of Nations and Mercosur in order to address, in a comprehensive and articulated manner, the mass flow of Venezuelan nationals and to facilitate immediate action to address the migration crisis in a humanitarian way. The same shall apply to the Regional Conference on Migration, and to the South American Conference on Migration.”82 In other words, as the Venezuelan crisis has highlighted, the CSM is not viewed as the pre-eminent forum for discussing urgent migration issues. In fact, new processes have been created to discuss states’ responses to this crisis, such as the Lima Group and the Quito Process.83 The lack of consideration to CS M is even more surprising given the forum’s motto, to “generate and coordinate initiatives and programs to promote and develop policies on international migration and their relationship with regional development and integration”84 and its eighteen years of experience. Most likely, the creation of parallel forums – such as the Quito Process – can only undercut CSM’s legitimacy, putting a strain on its future development. The CSM met in 2021, after a two-year interruption. As of mid-2022, not enough information is available to analyze the new objectives and scope of the C SM: to propose policies in response to the challenges in intraregional migration brought about by Venezuelan displacement and the Covid-19 pandemic, among other factors.

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Adopts the Quito Plan of Action, as a work program of the C S M .

1. Highlights the co-­responsibility of countries of migrant origin and destination for tackling migration-related issues; 2. Recognizes the compensations that developing countries need to offset the damages caused by migration processes, especially those related to the loss of labor resources.

C SM I I I Ecuador, 2002

* Prepared based on the declarations and agreements established in the final documents of each of the annual meetings. The benefits of migration column includes positive valuations of migration that have been mentioned as an antecedent or diagnosis, rather than as an agreement or a statement. References to governmental agreements or statements on the benefits of migration are included when they are part of an express commitment of states.

Intensifies regional to promote inter-regional cooperation with the European Union. This coordination aims to establish norms and procedures that lead to the regulation and ordering of migration flows, taking into consideration the historical and cultural ties between the two regions.

Rights of migrants Joins efforts to guarantee the protection, defense, and promotion of the rights of migrants. Reaffirms and compels governments to guarantee the defence of the human rights of migrants and their families within the framework of current international conventions and agreements. Members will take actions to promote and protect these fundamental rights and will seek to invite civil society organizations and international organizations specialized in these areas. Ensures respect for the rights of migrant workers and their families, in accordance with the domestic laws of the countries and the international instruments on the subject. Urges the international community on the need to: 1. protect and promote respect for the rights of people under any migration condition residing in another country; 2. guarantee migrants’ fundamental human and legal rights; and 3. ensure due process and prevent those detained for immigration infractions from being treated like common criminals.

Consistent migration policies Intensifies regional cooperation as an essential instrument to achieve the objectives of the C S M . Promotes joint actions and coordination of consular policies oriented towards improving attention given to South American migrants residing outside the region.

Benefits of migration

Declares that the CSM ’s objective is to comprehensively address the issue of migration.

C SM I Argentina, 2000 C SM I I Chile, 2001

Appendix: Table 10.3 Topics and Main Agreements of the South American Conference on Migration*

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CSM V Bolivia, 2004

C SM I V Uruguay, 2003

Benefits of migration

Coordinates actions that allow assistance for, and protection of, the human rights of migrants, especially those from South America; Recognizes the validity of human rights’ norms and standards regarding asylum and refuge. Reaffirms that migrants’ human rights have an influence on the migration policies of C S M member countries.

Declares the importance of holding workshops that allow for the exchange of experiences and best practices developed in the different linkage programs carried out by various countries in the region. Emphasizes the importance of addressing the subject of migration in South America through multilateral dialogue mechanisms. Recognizes the C S M as a regional platform for determining regional strategies for the governability of international migrations.

Reaffirms member states’ commitment to ensuring that migrants receive full human rights protection enshrined in the various international conventions in force on the subject. Requires non-member countries to grant fair and humanitarian treatment to migrants from the South American region, similar to the treatment provided to non-C S M country nationals in South American territories.

Rights of migrants

Consistent migration policies

Appendix: Table 10.3 Topics and Main Agreements of the South American Conference on Migration* (continued)

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Respects the unrestricted human rights of migrants, especially those of migrant women and unaccompanied minors, regardless of their migration status, within the legal framework of each country and in accordance with universal principles, and international and regional instruments for the protection of persons.

Reiterates the unrestricted commitment to the promotion and respect of the human rights of migrants and their families regardless of their migration status, nationality, ethnic origin, gender, or age, in order to eliminate any manifestation of xenophobia and discrimination.

Strengthens dialogue and political consensus in all existing regional areas and establishes that C S M meetings will be held annually.

Promotes cooperation programs that allow for the formulation of public policies for social development, aimed at transforming the structural causes of poverty and social exclusion, ensuring that the decision to migrate is based on ­reasons of ­preference and not necessity.

The issue of migration and development is considered a priority for the agenda of bilateral, regional, and international meetings. Reaffirms migrants’ valuable contribution to host countries and the need to promote programs in those countries that facilitate the integration of migrants, while respecting cultural identities, preventing discrimination, xenophobia, and racism. Facilitates the linking of emigrants with their countries of origin in a way that allows them to transfer skills and participate in investment opportunities to contribute to the development of their communities, the maintenance of their culture of origin, and the organization of migrant groups in host countries.

Reaffirms the valuable contribution that migrant populations make to the development of destination countries in social, economic, political, cultural, scientific, and academic arenas. Highlights the need to guarantee the integration of migrants into host societies through inclusion policies, formulated with the participation of the affected communities.

CSM VI Paraguay, 2006

CSM VII Venezuela, 2007

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Analyzes the proposal of the South American Human Development Plan for Migration and a Migration Cooperation Network, which will make South American integration effective through joint South-South coordination and cooperation actions.

Promotes the contribution of the South American diaspora in connection with the needs and opportunities for human development in member countries, and throughout the region, through the exchange of knowledge, skills, technologies, and other material and immaterial resources.

C SM I X Ecuador, 2009

Approves the final version of the Declaration of Principles and General Guidelines of the C S M and the South American Plan for the Development of Migrations (P S DHM).

Makes the unequivocal declaration that human beings are at the center of migration policies and that, consequently, the C S M must prioritize programs that facilitate the full exercise of the rights of migrants. Asserts that procedural guarantees for the protection of the human rights of migrants and the fundamental principles of international law and international agreements on the subject have primacy and should not be subordinated to the implementation of public policies. Reaffirms the decision of South American governments to protect the most vulnerable migrants, especially children and adolescents, migrant women, elderly people, migrants in transit, persons with disabilities, and persons belonging to Indigenous groups and Afrodescendant peoples.

Sets up the South American Network for Migration Governance with the objective of taking advantage of, and sharing, the capacities developed by each C S M country. The Network also aims to bolster South American horizontal cooperation and further regional integration.

Declares that emigration of a country’s population comes with a high social and economic cost for South American countries; that emigration is detrimental to the development of migrants’ country of origin; and that family disintegration has a negative impact on the migrant country.

C SM V I I I Uruguay, 2008

C SM X Bolivia, 2010

Rights of migrants

Consistent migration policies

Benefits of migration

Appendix: Table 10.3 Topics and Main Agreements of the South American Conference on Migration* (continued)

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P SD H M (pillars)

(Diagnosis only. Not associated with a specific strategic line)

The legitimacy of the C S M is expressed by advancing the human rights of migrants and their families. This implies disseminating information regarding the human rights of migrants and their families.

The human development of migrants and their families involves considering the human being and their rights as the focal point of any governance proposal, policy, or immigration program.

To achieve internal normative coherence within C S M , the objective of this strategic guideline seeks to adapt regional countries’ norms to the principles of the P S DHM , as well as to those commitments assumed through binational, regional, and international agreements. With regard to external normative coherence, the P S DHM seeks greater participation and commitment from the countries of the region in the ratification international instruments promoting respect for the human rights of migrants, especially the United Nations Convention for the Protection of all Migrant Workers and their Families.

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C SM X I I I Colombia, 2013

C SM X I I Chile, 2012

C SM X I Brazil, 2011

Reaffirms the priority of respecting and promoting the human rights of migrants and their families, regardless of their migration status, nationality, ethnic origin, gender, age, or any other consideration; Also strengthens C S M positions on migration issues on international forums. Reiterates the condemnation of migration policies that violate the fundamental rights of migrants and limit their access to education and health, which in many cases facilitate the adoption of racist, xenophobic, and discriminatory attitudes.

Highlights the importance of the agreements and instruments for the respect of migrants’ rights; Promotes the design and implementation of policies and regulations, as well as the negotiation and subscription of cooperation programs and instruments, with the aim of harmonizing migration regulations within the scope of U S A N ; At the same time, encourages member countries to promptly adapt their own internal regulations upon signing of agreements focused on the achievement of regional coherence. Encourages each member state to prepare a report on their current regulations on political rights. Promotes the creation of an annual report on the current state of regulations and institutions linked to the formulation and implementation of migration policies in each country. Strengthens programs that provide connections between South American nationals and reaffirms the importance of consular cooperation.

Recognizes the continued contribution of immigrant persons to the social, economic, cultural, and educational development in the receiving countries, and to the positive effects of migratory dynamics for the wellbeing and development of sending countries (in the declaration part of the final document; it is not an agreement).

Continues the development of the “Strengthening Capacities for the Promotion and Defense of Human Rights of Migrant Populations in a Situation of Vulnerability in South America” project by the IOM, with the support of member countries.

Promotes programs and initiatives on human rights, migrants’ access to health, education, housing, and justice, with special attention to vulnerable migrants, integration and education initiatives, and training programs.

Rights of migrants

Consistent migration policies

Benefits of migration

Appendix: Table 10.3 Topics and Main Agreements of the South American Conference on Migration* (continued)

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Reaffirms the need to maintain a comprehensive approach to dealing with the challenges of international migration based on the concept of governance, taking into account that efforts must articulate the joint work of member states. Continues to develop South-South cooperation initiatives aimed at strengthening government institutions, developing regulations, and formulating migration programs.

Entrusts the I OM with carrying out a study on local governments’ best practices on migration governance. Holds workshops on best practices for policies connecting nationals residing abroad.

CSM XIV Peru, 2014

CSM XV Chile, 2015

CSM XVI Paraguay, 2016

Reiterates the fundamental role of training processes for public and private officials and public officials. Reaffirms its commitment to promote and defend the full validity of the human rights of migrants, and to combat discrimination against migrants. Agrees to update the P S DHM and develop systematized training programs. Continues to promote initiatives that facilitate the social inclusion of migrants in host communities and facilitate migratory regularization. Promotes the exercise of migrant rights in accordance with the regulations and public policies of each member country. Disseminates member states’ best practices on migrants’ access to justice. Entrusts the IOM with continuing to collect best practices on migrants’ access to justice. Continues to promote initiatives aimed at facilitating migratory regularization, and working on the issue of trafficking. Entrusts the IOM with conducting workshops on gender-based approaches to migration policies.

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Announces that the reports prepared by the I O M and by the member countries were received and appreciated.

Member states expressed the need to strengthen cooperation between countries to assist their nationals abroad, thus ensuring the exercise of the human rights of people in situations of human mobility, and the rejection of the criminalization of migrants. States highlighted migratory regularization as an instrument for the protection of the migrants’ human rights.

C SM X VI I I Bolivia, 2018

Consistent migration policies

C SM X V I I Uruguay, 2017

Benefits of migration

Appendix: Table 10.3 Topics and Main Agreements of the South American Conference on Migration* (continued)

Reaffirms and expresses appreciation for the importance of the reports prepared by the I OM on access to justice, considers the need for further integration of gender issues in migration policies, and reaffirms the importance that member states continue to combat human trafficking (however, no explicit commitments are made). Urges member states to continue working on the construction of South American citizenship, which will facilitate progress toward the full exercise of human rights of all South American citizens and of migrants in particular. Reaffirms the commitment to guarantee the unrestricted and permanent respect for the human rights of migrants and their families, without discrimination.

Rights of migrants



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No t e s  











1 Christopher Mitchell, “International Migration, International Relations and Foreign Policy,” International Migration Review 23, no. 3 (Autumn 1989): 681–708. 2 Martin O. Heisler, “Migration, International Relations and the New Europe: Theoretical Perspectives from Institutional Political Sociology,” International Migration Review 26, no. 2 (1992): 596–622. https://doi. org/10.1177/019791839202600221; James F. Hollifield, “Migration and International Relations: Cooperation and Control in the European Community,” International Migration Review 26, no. 2 (1992): 568–95. 3 Heisler, “Migration, International Relations and the New Europe,” 596–622; Hollifield, “Migration and International Relations,” 568–95; Amanda Klekowski von Koppenfels, The Role of Regional Consultative Processes in Managing International Migration, IOM Migration Research Series no. 3 (Geneva: I OM , 2001); International Organization for Migration (I OM ), Conferencia Suramericana Sobre Migraciones, 2000–2015 (Buenos Aires: I OM , 2016). 4 International Organization for Migration (IOM), World Migration Report 2003: Managing Migration. Challenges and Responses for People on the Move (I OM : Geneva, 2004); Eduardo Domenech, “La Agenda Global Sobre Migraciones Internacionales: la Escena Sudamericana,” Novamerica 115, (2007): 44–9; U N -DES A, Examen y Evaluación de los Progresos Realizados en la Consecución de los Fines y Objetivos del Programa de Acción de la Conferencia Internacional sobre la Población y el Desarrollo: Informe 2004 (New York: United Nations, 2004); Klekowski von Koppenfels, The Role of Regional Consultative Processes. 5 Andrew Geddes, Marcia Vera Espinoza, Leila Hadj Abdou, and Leiza Brumat, eds., The Dynamics of Regional Migration Governance (Cheltenham, U K: Edward Elgar Publishing, 2019). 6 Domenech, “La Agenda Global Sobre Migraciones Internacionales,” 44–9; Jorge Gurrieri, El Proceso Consultivo en América del Sur: la Conferencia Sudamericana Sobre Migraciones (Geneva: IOM, 2005); Claudia I. Ortíz, “Algunas Dimensiones del Ideario de la Gobernabilidad Migratoria: el Proceso de Institucionalización de la Conferencia Sudamericana de Migraciones,” Cuaderno de H Ideas 5, no. 5 (2011); Jorge Martínez Pizarro, ed., América Latina y el Caribe: Migración Internacional, Derechos Humanos y Desarrollo (Santiago de Chile: C EPA L, 2008); Victoria Finn, Cristián Doña-Reveco, and Mayra Feddersen, “Migration Governance in South America: Regional Approaches versus National Laws,” in The Dynamics of Regional Migration Governance, eds. Andrew

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Geddes, Marcia Vera Espinoza, Leila Hadj Abdou, and Leiza Brumat (Cheltenham, U K: Edward Elgar Publishing, 2019), 36–53.   7 For more information on the CS M , see their website: C SM–OSUMI, last accessed 31 January 2021, csm-osumi.org.   8 Kristof Tamas and Joakim Palme, “Transnational Approaches to Reforming Migration Regimes,” in Globalizing Migration Regimes: New Challenges to Transnational Cooperation, eds. Kristof Tamas and Joakim Palme (Aldershot: Ashgate Publishing, 2006), 3–22.   9 This became the G 8 with the addition of Russia in 1997 until 2014 when this country was no longer invited to participate in this forum; Mark J. Miller and Robert A. Denemark, “Migration and World Politics: A Critical Case for Theory and Policy” Occasional Paper, no. 8 (New York: Center for Migration Studies, 1993). 10 Our emphasis, G 7 Information Centre, “Economic Declaration: Building World Partnership,” last accessed 31 January 2020, http://www.g8. utoronto.ca/summit/1991london/communique/index.html. 11 Jyoti S. Singh, Creating a New Consensus on Population (London: Earthscan Publications, 1998). 12 United Nations, Department of Economic and Social Affairs, Population Division, Examen y Evaluación de los Progresos Realizados en la Consecución de los Fines y Objetivos del Programa de Acción de la Conferencia Internacional sobre la Población y el Desarrollo: Informe 2004 (New York: United Nations, 2004); Singh, Creating a New Consensus on Population. 13 Ibid. 14 Martínez Pizarro, América Latina y el Caribe. 15 Berne Initiative/International Organization for Migration, last accessed 31 January 2020, https://www.iom.int/berne-initiative. 16 Global Commission on International Migration/International Organization for Migration, last accessed 31 January 2020, https://www. iom.int/global-commission-international-migration. 17 International Dialogue on Migration/International Organization for Migration, last accessed 31 January 2020, https://www.iom.int/ international-dialogue-migration. 18 Lelio Mármora, “Modelos de Gobernabilidad Migratoria: la Perspectiva Política en América del Sur,” Revista Interdisciplinar da Mobilidade Humana 18, no. 35 (2010): 71. 19 Gurrieri, El Proceso Consultivo en América del Sur; Jorge Martínez Pizarro and María Fernanda Stang, “El Tratamiento Migratorio en los Espacios de Integración Sudamericana,” Papeles de Población 12, no. 48 (2006): 77–106.

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20 Gurrieri, El Proceso Consultivo en América del Sur; Martínez Pizarro and Fernanda Stang, “El Tratamiento Migratorio,” 77–106; Susana Novick, “Migraciones en el Cono Sur: Políticas, Actores y Procesos de Integración. Los casos de Uruguay, Paraguay y Chile,” Perspectivas: Revista de Ciências Sociais 42 (2012): 79–114. 21 Michele Klein Solomon, International Migration Management through Inter-state Consultation Mechanisms (Geneva: IOM, 2005); Martínez Pizarro, América Latina y el Caribe. 22 Robert O. Keohane and Joseph S. Nye, Power and Interdependence (New York: Longman, 2001). 23 Stephen D. Krasner, “Structural Causes and Regime Consequences: Regimes as Intervening Variables,” in International Regimes, ed. Stephen D. Krasner (Ithaca: Cornell University Press, 1983), 22. 24 Lisa L. Martin and Beth A. Simmons, “International Organizations and Institutions,” in Handbook of International Relations, eds. Walter Carlsnaes, Thomas Risse, and Beth A. Simmons (London: Sage, 2002), 326–51; Keohane and Nye, Power and Interdependence. 25 Keohane and Nye, Power and Interdependence. 26 Bimal Ghosh, “Introduction,” in Managing Migration: Time for a New International Regime?, ed. Bimal Ghosh (Oxford: Oxford University Press, 2000). 27 Ghosh, “Introduction”; Miller and Denemark, “Migration and World Politics: A Critical Case for Theory and Policy”; Thomas Straubhaar, “Why Do We Need a General Agreement on Movement of People (GA MP )?,” in Managing Migration: Time for a New International Regime?, ed. Bimal Ghosh (Oxford: Oxford University Press, 2000), 110–36; Antoine Pécoud and Paul de Guchteneire, eds., Migration without Borders: An Investigation into the Free Movement of People (New York: Berghahn Books, 2009). 28 The Global Compact for Migration was endorsed by 152 votes in favour, 5 against and 12 abstentions. Also, the accords within this pact are merely non-binding cooperative agreements, which include states, civil society actors, and other relevant stakeholders. Official information on the Global Compact is available on the United Nations website (https:// refugeesmigrants.un.org/migration-compact) and on the International Organization for Migration website (https://www.iom.int/global-compactmigration); Elspeth Guild, “The Global Compact as a Milestone in Global Governance of Migration,” Global Social Policy 18, no. 3 (2018): 325–7, https://doi.org/10.1177/1468018118799418. 29 Klein Solomon, International Migration Management.

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30 Ghosh, “Introduction”; Klekowski von Koppenfels, The Role of Regional Consultative Processes; James F. Hollifield, “Migration and the ‘New’ International Order: The Missing Regime,” in Managing Migration: Time for a New International Regime?, ed. Bimal Ghosh (Oxford: Oxford University Press, 2000), 75–109. 31 Klekowski von Koppenfels, The Role of Regional Consultative Processes. 32 Ibid.; I O M , World Migration Report 2003. 33 Klein Solomon, International Migration Management; IOM, World Migration Report 2003; IOM, Conferencia Suramericana Sobre Migraciones; Klekowski von Koppenfels, The Role of Regional Consultative Processes. 34 Gurrieri, El Proceso Consultivo en América del Sur. 35 Klein Solomon, International Migration Management through Inter-state Consultation Mechanisms; I OM , World Migration Report 2003; Klekowski von Koppenfels, The Role of Regional Consultative Processes. 36 Ibid. 37 I O M, World Migration Report 2003; I OM, Conferencia Suramericana Sobre Migraciones. 38 Argentina, Bolivia, Brazil, Colombia, Chile, Ecuador, Guyana, Paraguay, Peru, Suriname, Uruguay, and Venezuela. 39 C S M meetings are numbered using roman numerals. 40 I O M, Conferencia Suramericana Sobre Migraciones, 37. 41 According to the CS M s’ List of Attendees (These are called Lista de Participantes or Participantes in Spanish), Bolivia has missed two meetings (X I I and XVI ), while Paraguay (XI I ) and Venezuela (X III) missed one. It is worth noting that Suriname has participated in six of the total 18 meetings (V I , V I I , VI I I , XI , XI I , and XI V) and Guyana has only attended three of the 18 meetings (I I , XI , and XI I ). The list of attendees is publicly available for every meeting, with the exception of C SMs V II, V III, and X III, at the website of the CS M (Conferencias C SM/C SM–OSUMI, last accessed 17 February 2021, http://csm-osumi.org/conferencias-csm). These lists include the names and institutions of each country representative as well as the names of the representatives of observer countries, international organizations, and civil society organizations. 42 The O S UM I was originally thought of as a virtual space for the generation, collection, and exchange of information on migrations to support the development of migratory policies with empirical evidence. The OSUMI is part of the CS M website at the website of the C SM (Conferencias C SM/ C S M–O S U M I , last accessed 17 February 2021, http://csm-osumi.org/ conferencias-csm). 43 Finn, Doña-Reveco, and Feddersen, “Migration Governance in South America,” 36–53.

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44 Gurrieri, El Proceso Consultivo en América del Sur. 45 Declaration of Santiago, Chile 2001, CS M II. 46 Plan of Action on International Migration in South America, Ecuador, 2002, C S M III, last accessed 31 January 2021, http://csm-osumi.org/sites/ default/files/conferencias/07_-_plan_de_accion_-_ingles.pdf. 47 The extended M ERCOS U R includes full and associate members. Its full members are Argentina, Brazil, Paraguay, and Uruguay. Venezuela is a full member but has been suspended since 1 December 2016. Associate countries are Bolivia, Chile, Colombia, Ecuador, Guyana, Peru, and Suriname. 48 Declaration of La Paz, Bolivia, 2004, CSM X V II, axe 13.3, 3. 49 Official Journal of the European Union, Directive 2008/115/EC of the European Parliament and of the Council on common standards and procedures in Member States for returning illegally staying third-country nationals, 16 December 2008. 50 Ramiro Hidalgo Tandazo, “El Informe Conceptual sobre Ciudadanía Suramericana: libre movilidad humana, identidad y derechos para los ciudadanos en la U N AS U R,” Revista del Centro Andino de Estudios Internacionales 16, (2016); S ELA, “Unión de Naciones Suramericanas (UNA S UR),” XLI Reunión Ordinaria del Consejo Latinoamericano, Secretaría Permanente del S ELA S P/ Di No. 10–15 (2015). 51 ¿ Q UÉ E S EL OS U M I ? / CS M –OS U M I , last accessed 31 January 2021, http://csm-osumi.org/node/1. 52 Domenech, “La Agenda Global Sobre Migraciones Internacionales,” 44–9; Mary Luz Estupiñan, “La Gestión Migratoria para la Gobernanza Global en Sudamérica: Apuntes Críticos,” in Debates Contemporáneos Sobre Migración Internacional: una Mirada Desde América Latina, ed. Alejandro I. Canales (Mexico City: M A Porrúa, 2016), 123–60. 53 Declaration of Montevideo, Uruguay, 2017, C SM X V II, axe II.4, 4. 54 A summary of these main agreements is presented in table format as an appendix to this chapter. 55 Declaration of Principles of the CS M , Cochabamba, Bolivia, 2010, C SM X. 56 Declaration of La Paz, Bolivia, 2004, CSM V . 57 Declaration of Quito, Ecuador, 2009, CSM IX . 58 Declaration of Brasilia, Brazil, 2011, CS M X I. 59 Declaration of Migration Principles and General Guidelines of the South American Conference of Migration, Bolivia, 2010, C SM X. 60 Finn, Doña-Reveco, and Feddersen, “Migration Governance in South America.” 61 Diego Acosta and Luisa F. Freier, “Turning the Immigration Policy Paradox Upside Down? Populist Liberalism and Discursive Gaps in South America,” International Migration Review 49, no. 3 (2015): 659–96, https://doi.org/10.1111/imre.12146.

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62 Diego Acosta, Cécile Blouin, and Luisa F. Freier, “La Emigración Venezolana: Respuestas Latinoamericanas,” Documentos de trabajo (Fundación Carolina), no. 3, 2019, 1–30. 63 Declaration of Santiago, Chile, 2001, CS M II. 64 For example, CS M XI I I onwards. 65 David S. FitzGerald and David Cook-Martín, Culling the Masses: The Democratic Origins of Racist Immigration Policy in the Americas (Cambridge, M A: Harvard University Press, 2014). 66 Finn, Doña-Reveco, and Feddersen, “Migration Governance in South America.” 67 Diego Acosta, The National versus the Foreigner in South America: 200 Years of Migration and Citizenship Law (Cambridge: Cambridge University Press, 2018). 68 Declaration of Quito, Ecuador, 2002, CS M III. 69 Ibid. 70 Declaration of Asuncion, Paraguay, 2006, C SM V I. 71 Declaration of Montevideo, Uruguay, 2003, C SM IV . 72 Declaration, Brasilia, Brazil, 2011, CS M XI. 73 Acosta, The National versus the Foreigner in South America. 74 Guild, “The Global Compact as a Milestone in Global Governance of Migration.” 75 Thomas H. Marshall and Tom Bottomore, Citizenship and Social Class (London: Pluto Classics, 1950). 76 Acosta, The National versus the Foreigner in South America. 77 Declaration of Asuncion, Paraguay, 2016, C SM X V I. 78 “Declaration of civil society organizations before the X IV South American Migration Conference,” last accessed 31 January 2021, https://madenetwork.org/sites/default/files/PDF/Declaracion-OSC-XIVCSM-Lima-2014-Version-Final.pdf. 79 Acosta, and Freier, “Turning the Immigration Policy Paradox Upside Down?,” 659–96; Acosta, The National versus the Foreigner in South America. 80 Acosta, Blouin, and Freier, “La Emigración Venezolana.” 81 Martínez Pizarro, América Latina y el Caribe. 82 “Declaración de Quito sobre Movilidad Humana de Ciudadanos Venezolanos en la Región,” Ministerio de Relaciones Exteriores y Movilidad Humana, Gobierno de la República del Ecuador, last accessed 31 January 2021, https://www.cancilleria.gob.ec/declaracionde-quito-sobre-movilidad-humana-de-ciudadanos-venezolanosen-la-region. 83 Acosta, Blouin, and Freier, “La Emigración Venezolana.” 84 C S M-O S UM I , last accessed 31 January 2021, http://csm-osumi.org.

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C o n c l u s i on

The Evolution, Common Features, and Trends of Migration Policies and Reforms in Latin America Na t a l i a C a i c e d o Ca ma c ho, Da v id M o y a , K a r l o s C a s t i lla , A lb a A lon so

1 E vo l u t io n a n d Background o f   C u r r e n t Im m ig r at i on Legi slati on Latin America’s migration phenomenon certainly has its own unique history and development. Colonial processes turned Latin America into a region defined both by voluntary and forced mobility, first by European colonizers, and later on via the trafficking of enslaved people from Africa. After colonial independence, the continent experienced a decrease in immigration, which resumed again at the end of the nineteenth century and the first half of the twentieth century, with the arrival of immigrants from Europe, the Middle East, China, and Japan. Contemporary migration flows date from the beginning of the twentyfirst century and are marked by broad regional mobility.1 Up until the end of the 1940s, the region experienced considerable demographic growth, as well as the start of rural migration to urban centres. However, processes of regional and international migration were not yet particularly significant. Starting in the 1950s, following the establishment of the Economic Commission for Latin America and the Caribbean (E C L A C ), many Latin American governments adopted the import substitution industrialization (I S I ) model to increase both the production and consumption of industrial goods. ISI model promoted massive flows of rural to urban migration, which

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had an immense influence on the social and economic organization of the region. The results of this model, however, were not uniform across the various economies of the region. At the same time, the migration trends that played out during this period were similarly problematic and uneven. For example, in relative terms, the economies of Argentina, Brazil, and Mexico experienced significant growth as a result of the I SI model. The same cannot be said of the economies of countries like Colombia, Costa Rica, Ecuador, and Peru. Additionally, a significant number of people who migrated from rural to urban areas did not directly benefit from this model. Instead, their migration was found to have contributed directly to the increase of sprawling informal housing settlements in the industrial cities of Latin America, such as the infamous favelas of Rio de Janeiro, ranchos in Venezuela, and comunas in Medellin, to mention just a few. Despite these negative developments, Latin America’s application of Keynesian economic policies, similar to those that had prevailed across Western Europe since the end of the Second World War, enabled a golden age of economic growth. To a large extent, these achievements were due to states’ strong intervention in the economy, which slowly diminished until the end of the 1970s. However, the start of so-called stagflation, or economic stagnation coupled with inflation, marked the decline of Keynesian policies in many regions of the world and the emergence of neoliberalism, seen by many as antithetical to Keynesian economics. Like many other global economies, Latin American countries struggled with the phenomenon of stagflation, which was especially aggravated by the runaway devaluation of its currencies. At the same time, the Cold War brought about ideological, political, and even military confrontations between the United States (US) and the Soviet Union (and their respective allies), which played out in many third party countries, including those of Latin America. These Cold War conflicts then became entangled with the dynamics of pre-existing local tensions, generating armed conflicts, regime changes, and deep social fractures. Coups and the imposition of military dictatorships in many countries, most notably in Argentina, Chile, and Uruguay, generated a remarkable flow of exiles and forced migration to other countries in the region, such as Brazil and Mexico (countries that would also experience military dictatorships and the out-migration of numerous exiles), as well as Europe and the United States. Similarly, the dictatorial regimes, armed conflicts, and brutal state repression unleashed in some Central American countries, such

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as El Salvador, Guatemala, Honduras, and Nicaragua, caused the exodus of thousands of migrants and the forced expulsion of large swaths of their countries’ populations. Not until the 1980s did many of Latin America’s military and dictatorial regimes begin to give way to various versions of democratic reform. However, the dissolution of these regimes provided an opening for the neoliberal model to gain pre-eminence, which resulted in skyrocketing public and private debt, an increase in unemployment, restrictions on labour rights, and the privatization of social programs, previously considered the purview of the state, throughout much of Latin America. As a result, the 1980s became known as the lost decade. The 1990s, and the beginning of the twenty-first century, were marked by economic crises in a majority of Latin American countries, which caused a significant surge in out-migration flows, especially to the United States and Europe. Countries like Bolivia, Colombia, and Ecuador were the most affected by emigration during this period, while the migration exodus was proportionately smaller for the countries of the Southern Cone, such as Chile, Paraguay, and Uruguay. Because these economic and migration processes unfolded differently in each of the countries of the region, it is only possible to provide some general regional timelines and trends. Central America can be considered both as an area of migrant origin and transit toward the US. The tumultuous civil wars that occurred in the Central American region during the 1980s caused an unprecedented displacement of migrants toward the North. Although Central American migration destined for the US is a long-standing trend, it intensified from the 1980s onwards. Severe economic disruptions and widespread human rights violations continue to afflict the region, and contribute to significant outward migration flows.2 The Andean region of South America has long had its own particular migration dynamics. For a long time, Colombia qualified as a country of emigration due to its armed internal conflict, which gripped the country for more than sixty years, as well as to its financial crisis at the end of the 1990s. In recent years, the forced displacement of Venezuelan people has turned Colombia, as well as other countries in the region, into destinations of mass forced immigration. Ecuador, a historic source of emigrants because of the country’s various economic crises, has nevertheless recognized the highest number of asylum applications of any other Latin American country. Moreover, Ecuador’s consti­tution grants universal citizenship, and the country

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currently hosts a substantial – although not large – population of foreigners. In contrast, for decades, Venezuela received a large Latin American, European, North American, and Asian population (in 1980 these nationalities constituted 10.8 per cent of the country’s total). However, in recent years, migrants and refugees have left the country en masse, not only within the region, but also toward the United States and Europe. In the same vein, Peru, which, during much of the twentieth century, served as a destination for European, Asian, and even African migrants, has, since the 1980s, become largely defined by emigration, mainly due to the debt crises of that decade, as well as the rise of authoritarian governments. From 2010 onwards, Peru has become a transit country for Colombians hoping to immigrate to Chile. Simultaneously, Peru has promoted policies to attract foreign financial investment, which has also contributed to the uptick in migration linked to business and finance. Again, the impact of the ongoing Venezuelan exodus represents a challenge for countries in the region, such as Peru, regarding national migration policies, as, up until now, these have been geared to attract only highly qualified migrants. In contrast, for decades, Bolivia has maintained a consistent immigration policy toward countries in the region, most notably Argentina and Chile but also toward European countries and the United States. As for Brazil, the country’s migration history stands out because it was the highest receptor of European and Asian immigrants in the ­nineteenth century. It shifted to curtailing immigration during the twentieth century and has adopted a more accepting stance toward regional and African immigration in the last thirty years. The Southern Cone has a migration trajectory that coincides with those of other Latin American countries in some respects: it experienced a large influx of foreign migration from Europe (during the colonial period, as well as in the post-First World War era); and military dictatorships that ravaged the region between the 1970s and 1980s,3 followed by authoritarian military governments, both of which led to an exodus of migrants to other countries. Despite their turbulent history, Southern Cone countries have achieved general economic stability, which has inspired the influx of thousands of migrants (especially from Latin American), among them a large number of international asylum seekers. After a brief review of Latin America’s contemporary immigration context, readers may have the impression that governments of the region had little incentive to implement policies that promote the rights

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of migrants. Throughout the twentieth century, the general stance of Latin American governments toward human rights has varied between indifference and punishment, with many largely misunderstanding migrants. This lack of interest also extends to the immigrant population more broadly, especially in countries with insignificant migratory flows. In countries where the influx of immigration has a significant impact, or there is a particular interest in immigration, legislation often has two facets: 1) the promotion of a “desired” type of migration; and 2) the control and penalization of “unwanted” migration, which is subsequently categorized as irregular. The lack of protection of immigrants’ rights, as well as the weak consular support for migrants, is foregrounded and reflected in the chapters throughout this book. Additionally, the figure of the “wanted migrant” emerged in the history of countries like Argentina, Brazil, Colombia, Mexico, and Peru. This type of migrant, much like the figure of the White Anglo-Saxon Protestant, is portrayed as possessing characteristics opposite to those of “unwanted” migrants: European background (also Asian in some cases), young, hardworking, healthy, honest, and wholesome.4 We therefore agree with a utilitarian logic of immigration5 based on the premise that discriminatory policies have resulted in immigration legislation that has used broad discretion to select who should remain and who should be expelled.

2 G e n e r a l R e g u l ato ry Frameworks 2.1 The Constitutional Framework The degree to which national constitutions affect immigration and asylum varies according to each country in the region. The Ecuadorian Constitution offers the most guarantees for migrants’ rights, at both the regional and global level, recognizing the right to universal citizenship, including free mobility, the creation of Latin American citizenship, and the full exercise of migrants’ rights. At the same time, the Constitution also features a section titled “mobility rights,” which includes the right to migrate, according to which no person can be considered illegal; the right to refuge, including the possibility of recognizing the refugee status of an entire group; the right to not be displaced; and the right to return to one’s place of origin. In addition, the Ecuadorian Constitution also recognizes the principle of equality between nationals and foreigners; rejects xenophobia and discrimination based on a person’s origin or

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migration status; and allots special attention and priority to persons in the process of migrating. In terms of specific rights, the Constitution includes the right to non-refoulement, certain forms of political rights, and the right to reparation for groups affected by xenophobia, as well as prohibiting collective expulsions. From an institutional point of view, the Constitution also creates a bureaucratic entity charged with formulating immigration policy in coordination with multiple levels of government. Other countries’ constitutions, although limited in scope compared with Ecuador’s, also include references to migration status. For example, Article 20 of the Argentine Constitution establishes the general principle that foreigners are entitled to enjoy all of the civil rights granted to citizens throughout the national territory. Article 100 of the Colombian Constitution outlines the principle that foreigners are entitled to the same civil rights granted to Colombian citizens within the country’s territory. Meanwhile, Article  33 of the Mexican Constitution defines foreign persons as those who do not possess the qualities determined in Article 30 of the country’s Constitution and are provided the human rights and guarantees recognized therein. Although all of these regulations are subject to terms and conditions within their respective constitutions, a literal interpretation of these texts, along with a stance that favours the recognition of rights, can lead to the understanding that cases that fall outside of those terms and conditions should imply that the rights of nationals and foreigners are equally recognized Such an interpretation should guide the constitutional control of immigration laws. The right of asylum is also recognized by the constitutions of Brazil, Colombia, Ecuador, Mexico, and Peru. With regard to the regulation of rights, the constitutions of the countries analyzed in this book tend to broadly reference the bearing of rights, such as “all inhabitants” or “all persons,” including the right to “free movement” in the Peruvian and Mexican constitutions. Again, based on a broad interpretation, and adopting a pro-recognition of rights stance, the entitlement to rights should be inferred from the inclusive wording laid out in various constitutional texts, especially when taking into account the role that constitutions play in the arena of guaranteeing rights. However, in practice there has been a significant gap between the pro-recognition principles stipulated in various Latin American ­constitutions and the restrictive norms enforced on the ground, which indicates that legislative interpretations have rarely offered effective

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rights. This situation begs an examination of the role of constitutional and ordinary jurisprudence in the treatment of international human rights standards, especially those related to immigration.6 As discussed in this book, the Chilean Constitutional Court has been shown to be exemplary in the scope of its constitutional recognition of rights to “all people,” and in its recognition of related international treaties. In this sense, the Court has affirmed that the status of foreigner is a category suspected of being discriminatory, requiring further reasoning to justify the differential treatment of nationals versus foreigners. In this vein, the analysis presented throughout this book explores and nuances the bidirectional relationship between national immigration legislation and international human rights treaties. The constitutional structures developed in the last decades in some, but not all, Latin American countries feature opening clauses establishing that human rights treaties shall be applied directly. In other cases, certain constitutions recognize treaties that supersede the law, while others have interpretation clauses that seek the interpretation of norms in accordance with human rights treaties or are formulated in response to the so-called pro persona principle. The Argentine Constitution grants international treaties supremacy by its constitution, while Ecuador’s establishes that international treaties are to be applied directly. In Colombia, the country’s Constitutional Court declared early on that international human rights treaties shall form part of its constitutional block. Peru’s Constitution does not expressly indicate the range of international treaty recognition, but the country’s Constitutional Court has determined that a distinction must be made between human rights treaties, which have constitutional status, and the rest of its treaties, which have legal status. Similarly, Chile’s Supreme Court has directly applied the International Treaties on Human Rights through its constitutional text, and has thus expanded the level of protection of migrants’ rights. Serving as an exceptional case, Mexico’s constitutional text highlights the international treaties to which the country is a party and the human rights recognized therein, which also extend to every person residing in the country. While awaiting pronouncements from the relevant high courts, the authors of the chapters of this book maintain that the content of specialized treaties must be recognized as part of the norms that make up the normative block on immigration, refuge, and nationality. Most constitutions tend to feature opening clauses that gesture toward the incorporation of treaties as norms of constitutional

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standing. This is because they has been expressly provided for in the constitutional texts, or established by the constitutional courts. Although still a matter of debate, international human rights treaties in states’ national legal systems have a position of supremacy, demonstrating that various options to extend the protection of human rights in the region are being explored. 2.2 The Legislative Framework The evolution of immigration-related legislation is characterized by significant variation. Yet, in spite of the observed legislative heterogeneity, certain categories have emerged. From the middle of the twentieth century onwards, we can observe a group of countries that enacted migration regulations while under rule by military dictatorships, such as Argentina’s 1981 Law No.  22,439, Chile’s 1975 Decree-Law No. 1,094, and Brazil’s 1980 Law No. 6,815. In these laws, the vision of national security prevails and migrants are treated as suspicious persons who are responsible for distorting prevailing notions that a homogeneous society is the basis for a strong national identity. These pieces of legislation omit the recognition of rights while granting great discretion to the administration in all immigration procedures, resulting in high levels of arbitrary actions. Other democratically elected governments have also applied legislation that restricts migrants’ rights. In the case of Peru, left-wing governments have maintained the migration policies of their military government predecessors, who used regulation and control of migration flows to achieve national security objectives. In the case of Mexico, the General Population Law of 1974, which was enforced for more than six decades, also stood out because of its repressive character, typifying migrants as persons who entered and remained in the country without authorization. Another group of countries can be characterized by their so-called policies of indifference. Throughout the twentieth century, countries like Bolivia, Colombia, and Ecuador did not have any legal statutes to regulate immigration flows. The absence of legislation was due in large part to the fact that immigration to these countries was practically non-existent. The start of the twenty-first century has seen all Latin American states incorporate the phenomenon of migration into their political agendas. From a legal point of view, these substantial changes have

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been reflected in immigration laws being enacted in many South American countries, such as Argentina in 2004, Uruguay in 2008, Bolivia in 2013, as well as Brazil, Ecuador, and Peru in 2017. Although the content, orientation, and scope of these laws is diverse, they share a marked tendency to incorporate systematic regulations and guarantees of rights. Thus, some of these laws recognize the right to migrate (Argentina and Ecuador), include principles like the non-­ criminalization of irregular immigration, and recognize the socio-economic contribution of migrants (Ecuador and Peru). Of all the recent laws, it is worth emphasizing Ecuador’s legislation, because it is possibly one of the first immigration laws established by a country to address issues that transcend its national borders and encompass the much broader and more complex phenomenon of human mobility. Although the law fails to regulate all scenarios that involve human mobility (e.g., forced internal displacement), its commitment to overcoming the narrow scope of national-level migration laws, which have traditionally been limited to regulating incoming migration flows, is noteworthy. It should also be mentioned that the vast majority of the legislative reforms were created and adopted in direct response to persistent demands from wide-ranging networks of actors, including civil society, human rights organizations, ecclesiastical institutions, academic institutions, migrant and diaspora organizations, and trade unions, among others. Their engagement and advocacy, combined with the opening of different channels of dialogue and political debates (the scope of which varies between countries), have played a decisive role in various cases. This policy trend, which favours the recognition of immigrants’ rights, seems to be in decline. For example, the draft reform of Ecuador’s Human Mobility Law (November 2020), oriented toward a public safety policy, includes new causes for deportation and makes the procedure more flexible and expeditious to the detriment of the protection of human rights and of the right to human mobility ­provided for in the constitutional text. Similarly, Mexico passed an immigration law in 2011 that neither advances the provision of migrants’ rights, nor includes principles, such as the right to migrate. In addition, Mexico’s immigration legislation still appears unresolved; the 2011 law has been the subject of numerous reforms and its regulation has not yet been approved. These pieces of legislation further develop the principle of equality between nationals and migrants with residence authorization. Thus,

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with the exception of the rights of political participation, regularized migrants hold almost all of the same rights as nationals. Another aspect that should be highlighted is the establishment of only certain rights for some people in irregular situations, most notably under Argentine and Peruvian law. The right to vote remains noticeably absent. This represents a democratic void of sorts, which should be addressed by future reforms. Similarly, the regulation of migration policy issues (visas and expulsions) continues to reflect states’ interests in maintaining control of migration flows, to the detriment of the right to migrate, which has been recognized by the legal systems of countries such as Argentina and Ecuador. It is also important to point out that significant legislative advances have been made in protecting the right to due process, developing legal guarantees in expulsion and deportation processes, as well as regulating the different visas that allow access to the territory. For another group of countries, it has not yet been possible to develop and adopt laws that systematically regulate the migration phenomenon. In any case, the absence of such legislation should not be understood as an indication that migration is irrelevant for these countries. In Chile’s case, the legislation in force since 2011 was enacted by the military regime, further perpetuating the doctrine of national security. The reforms Chile has carried out to date have only been partial or modified minor regulations.7 Apart from migration control, strict regulations of migrant entry and expulsions have ­continued to be the focus of national security. The 2021 Migration Bill aims to fill this legislative gap, despite strong criticism from civil society and human rights ­associations. At the time of writing, the bill is in the hands of the Constitutional Court, which must decide on its constitutionality. It is also worth pointing out that the country’s Constitutional Court has made pronouncements establishing parameters that effectively assert control over the actions of the executive branch, and has also incorporated principles of human rights protection. In the latter case, Colombia has helped fill a legislative vacuum by enacting immigration regulation standards. In recent years, the country has issued more than 10 decrees and legal regulations on migration issues. This somewhat improvised response has resulted in a fragmented and unsystematic regulation of migration, revealing significant regulatory gaps and subsequent legal insecurity for migrants residing in the country. Similar to Chile, Colombia has also enacted a new immigration law, in the context of a legislative and social debate heavily marked by Venezuelan migration.

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3 T h e Im p o rta n c e o f Regi onal Human R ig h t s N o r m s a n d Supranati onal In t e g r at io n Proces ses It is widely known that a significant challenge to the governance of migration is the lack of regional, not to mention global, agreements to effectively regulate various migration flows and coordinate the exit, transit, arrival, and return of migrants, in conjunction with all the countries involved. At present, the regulations and policies that have arisen from the institutions associated with the European Union are usually looked to as a contemporary source of inspiration and a working example of the establishment of regional policies on migration. However, a detailed study of these organizations reveals that while they do share certain regulatory frameworks, each individual country makes the ultimate decision on particular aspects of migration policies. So, although the idea of coordinated regional governance shows progress in Western Europe, this aspiration is still far from being uniform even in this region, where national borders have predomi­ nantly given way to the free movement of people and high levels of cross-national integration. Although integration processes have been undertaken in Latin America, the creation and adoption of common migration policies has yet to come to fruition. As has been observed, attempts at Latin American integration have been rather incongruent and have arisen in response to distinct historical moments and developments. Nevertheless, these integration processes, the establishment of international norms, as well as the regulatory bodies overseeing such treaties, have undeniably influenced the way in which the national systems of migration, residence, and asylum have been designed and implemented. Again, many decisions are ultimately left up to individual states. They have been responsible for the creation of these international systems and they decide on the most appropriate conditions under which to enter into international obligations. The following section thus describes some of the major contributions and common approaches found within the relevant international regulations that apply to the Americas. 3.1 The International and Regional Human Rights Framework Beginning chronologically, the 1951 Convention Relating to the Status of Refugees is a universal treaty to which all the countries analyzed in this book (Argentina, Chile, Ecuador, Colombia, Brazil,

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Peru, and Mexico) became party between 1955 and 1972, except Mexico, which joined in 2000. The Protocol Relating to the Status of Refugees was approved in 1967, with Mexico joining last in 2000, while the other countries joined at least two decades before. Thus, the degree of influence this treaty has on national systems varies. Surprisingly, Mexico has become renowned as a country of refuge – surpassing the other countries analyzed – serving as a destination for persons fleeing the South American dictatorships of the 1970s and 1980s, all the while not being officially linked to either of these two international treaties. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families was adopted in the late 1990s, and is a convention to which all the countries analyzed in this book, except Brazil, are signatories. However, only Ecuador and Peru have acceded to the convention without reservations, while Argentina, Chile, Colombia, and Mexico have made interpretative declarations, or reservations, regarding the text of the treaty. The various reservations they have made are worth pointing out. For example, Chile does not recognize the right to compensation in cases of revoked deportations; Colombia made reservations on the expropriation and taxation of assets and income of migrant workers; and Mexico has made interpretive declarations that establish that the content of the Convention will be applied in accordance with its national legislation. Out of the seven countries analyzed in this book, only Mexico has made the declaration of Article 77 of the Convention, meaning that it is the only country that has recognized the responsibility of the Committee on Migrant Workers provided by the International Convention for its surveillance. In the sphere of the Americas, more broadly, there is a greater number of specialized treaties related to asylum and refuge: the Convention on Political Asylum of 1933, to which Argentina is not party; the Convention on Diplomatic Asylum of 1954, to which Chile and Colombia are not parties; and the Convention on Territorial Asylum also of 1954, to which Argentina, Chile, and Peru are not parties. Similarly, although the Cartagena Declaration is not a treaty per se, as we have seen it is an instrument that, to some degree, has shaped the national systems of asylum analyzed throughout the chapters of this book. Article 22 of the 1969 American Convention on Human Rights, to which all the countries we studied are parties, recognizes: the right of

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movement and residence; the right of departure from any country; a person’s right to not be expelled from their country of nationality; the right to seek and receive asylum; the prohibition of expulsion from one country and being returned to another one, whether it is your country of origin or not, where your right to life or to personal freedom is at risk of violation due to race, nationality, religion, social status, or political opinions; and the prohibition of collective expulsions. In addition, Article 20 of that Convention recognizes the right to nationality. So, although it is not a specialized treaty, such as those cited above, it has two oversight bodies – the Inter-American Commission on Human Rights (I A C H R ) and the Inter-American Court of Human Rights (IACtHR). In recent years, the content of Articles 22 and 20 has had the greatest influence on national legislation, especially on the basis of interpretations made by the IACtHR regarding advisory opinions and contentious cases, in which the Court has had to refer to issues such as nationality, legal assistance, due process of migrants, conditions of detention for purposes of immigration control, as well as expulsions, asylum, migrant workers, and migrant children. It is also worth mentioning the influence that the IACHR has had with its concrete, special, and country-specific reports, which refer to the situation of migrant workers in the southern half of South America (1999), the situation of migrants in Mexico (2013), or, more recently, its report on human mobility under the inter-American human rights standards (2016). Also, within the framework of the Organization of American States (O A S ), it is worth underscoring the work being developed with the Continuous Reporting System on International Migration in the Americas (SICREMI), which aims to contribute to the promotion and development of public policies that improve migration management in the Americas, by facilitating dialogue, cooperation, institutional strengthening, and access to information. Despite the fact that it is not an official platform for dialogue or negotiation, through its biannual reports it has served as an indispensable point of reference for the study of migration across the Americas. Although the above are not the only relevant international and regional norms applicable in the field of immigration and asylum, they nonetheless allow us to observe the various levels of states’ commitment, the homogeneity and difference in the assumption of international obligations, and the influence that each of these treaties, and international instruments, may have on the countries selected for this edited volume and the region more broadly.

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3.2 The Normative Approach following Supranational Integration Processes The regional organizations that operate throughout the Americas are numerous, and, therefore, it is difficult to confirm broad regional trends, especially since the migration-related agreements that have been reached have varied greatly across regions and countries. When it comes to regional integration, the dynamics of South American countries differ from those of Central America and Mexico. Thus, there has been a level of convergence around issues of human mobility, allowing for various important objectives to be reached. The Andean Community (CAN, also called the Andean Integration System) has been in operation since 1969, and its members include Bolivia, Colombia, Ecuador, and Peru, while Argentina, Brazil, Chile, Paraguay, and Uruguay are considered associate countries. The CAN framework has adopted a series of documents that seek to create a degree of reciprocity between the involved countries, rather than homogeneity. One of the CAN’s most notable accomplishments was the creation of the Andean Passport, which was approved in 2001. One year later, “Andean windows” were implemented at airports, which provide service to nationals of member countries. In 2003, the Andean Labour Migration Instrument was approved, which seeks to give Andean workers the same treatment as nationals. In 2006, the Andean Migration Card was incorporated as a uniform migration and statistical control document, whose use became mandatory for persons’ entry into, and departure from, the territory of member countries. Perhaps the most ambitious policy proposal has been the creation of the Andean Migration Statute in 2013, which seeks to implement uniform regulations on the rights of movement and residence of Andean citizens throughout the territory of the member states. Though the magnitude of the negotiation process has been enormous, it has given way to long periods of negotiation inactivity. Despite this impasse, in December of 2016, talks resumed, with the objective of developing the CAN into the vanguard of Latin American immigration and integration. The efforts made by the CAN are important and resulted in the approval of the statute in 2021. For this reason, this book has analyzed three of its four member countries (Colombia, Ecuador, and Peru). In the context of South America’s Southern Cone, the process of integration began in 1991 with the creation of the Southern Common Market (MERCOSUR). Its founding member countries comprise Argentina, Brazil, Paraguay, and Uruguay. In 2012, Venezuela joined as

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a member country; however, its participation in MERCOSUR was suspended in 2017 via the 1996 Ushuaia Protocol, which seeks to safeguard democratic order in the region. The rest of the Latin American countries (Bolivia, Chile, Colombia, Ecuador, and Peru) have been incorporated as associated countries. MERCOSUR also began to address migration issues toward the end of the 1990s, with agreements that facilitated the mobility of workers. However, the regional bloc’s most significant push for labour mobility dates back to 2002, with two migratory ­regularization agreements, followed by its Residence Agreement later the same year. The latter agreement proposes a novel scenario for regional integration, because it recognizes the right of nationals of M E RCO S U R member states, and those of associated countries, to reside in another member state. The crucial aspect of MERCOSUR residence is that it decouples migrants’ right to residence from their economic / labour contribution. In other words, migrants’ right to reside is not dependent on a their ability to obtain a labour contract, or have their financial means verified. That type of residence best reflects the right to migrate, as described in various Latin American constitutions and legislations. In 2010, the approval of the Statute of M E R C O S U R Citizenship represented another migration-related milestone. This statute established an Action Plan to enable the progressive development of regional citizenship, in which a set of objectives were laid out: to facilitate transit, to circulate persons, to simplify procedures for migration control, to harmonize information required to issue identification documents, to expand consular cooperation mechanisms, to develop regional plans to facilitate circulation of workers, and to fully implement and gradually expand areas of integrated border control. Overall, the Citizenship of ME R C OSUR is an ambitious political wager that has not yet experienced substantial progress. Finally, we must highlight the importance of MERCOSUR’s Specialized Migration Forum, which includes the participation of the Ministers of the Interior of all MERCOSUR member states and associated states. The forum aims to study the impact of migration in the region, and to create migrationrelated projects and agreements that may be applicable in the region. Many of the decisions that have been approved in these treaties, conventions, and organizational bodies have been analyzed in detail in several chapters of this book. However, by way of conclusion, it should be noted that although the CAN and M E RCO S U R represent an overlapping geographical area, their organizational procedures develop at very distinct paces, and the degree to which they have achieved their objectives is clearly dissimilar. In addition, there are

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currently no instruments that allow for formal and sustained communication between these entities, even though all the member countries of ME R C OSUR , and Chile, are also associated states of the C A N , and all member countries of the CAN , as well as Chile, are also MER C OSUR partners. Only Bolivia is currently a state party to the CAN, and is in the process of gaining associate status in MERCOSUR. This highlights the difficulty associated with these processes. Implementing both M E R C O S U R and the C A N agreements, within states’ internal systems, also poses important challenges. In neither of these two institutions of regional integration are there mechanisms, or instruments, to enforce compliance with the decisions adopted. This results in a situation in which the internal dynamics of each individual state determine the scope and speed with which decisions are applied. It has also been found that the only way to expedite the adoption of agreements is by applying external diplomatic pressure during crucial phases of the Conferences of Presidents. To show the slow pace with which decisions are adopted, the 2002 Residence Agreement, the most ambitious instrument in advancing regional mobility, took more than ten years to come into force. The migratory crisis created by the Venezuelan exodus poses a great challenge for the entire South American region. Up until now, the way in which countries in the region have handled the arrival, and integration, of Venezuelan nationals, has given rise to internal policies developed unilaterally by different states, with very little intra-regional coordination. Thus, regional integration processes, such as MERCOSUR or the CAN, seem to have failed to promote a discussion framework among member states, as well as to create dialogue that later translates into joint and coordinated policies and decision-­making. The small steps that have been taken thus far to propose regional measures have taken place outside the institutions of regional integration. The creation of the Lima Group, or the Quito group, to discuss the regional impact of Venezuelan migration is an example of how MERCOSUR and the CAN are not the leading institutions in this field.

4 T h e T r e at m e n t o f Mi grati on f or t h e   P u r p o s e o f R e si dence and Work Regimes regulating migrant residence and work remain remarkably diverse at the national level. This is particularly striking since there exists a wide international regulatory framework for this arena,

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starting with the International Convention on the Protection of the Rights of All Migrant Workers and their Families, adopted by the General Assembly of the United Nations in 1990. Several countries in Latin America have ratified8 it through various International Labour Organization Conventions on the subject. It served as a normative framework that, in principle, benefited the citizens of these countries abroad, and now serves as a benchmark for legislation on related subjects. What is even more striking is that the regional ­regulatory framework – the result of supranational integration processes – has placed particular emphasis on establishing a space for labour mobility and facilitating change of residence for citizens of the region. Taken together – the decisions on the MERCOSUR visa; citizenship; residence; migratory regularization agreements; specific decisions regarding entrepreneurs, tourists, and students; the Andean Migration Card; the CAN decision on the recognition of identity documents; the Andean passport; and the Andean instrument of labour migration – these frameworks demonstrate a clear resolve to move toward a common frame of reference for residence and work in the region, oriented toward providing freedom of movement and minimal partitioning of rights. However, in spite of this international and regional framework, analyses of specific provisions, which c­ urrently regulate migrant residence and work across different states, is still extraordinarily heterogeneous, at least at the administrative level. This may be due, in part, to the instruments of supranational integration, specifically their nature as instruments designed to set objectives and orient legislation toward achieving them. These instruments are less geared toward achieving full harmonization, yet they still allow for fluid dynamics, which permits M E RCO S U R to apply instruments, such as residence agreements, to Bolivia or Chile. These integration processes only affect Latin American citizens whose countries are party to such agreements, not the citizens of third states, so the regulation of their labour remains limited. To further complicate this analysis, several states have signed bilateral agreements with each other to extend residence rights. For example, in 2009, Brazil signed an agreement with Uruguay pertaining to residence, study, and work permits for nationals of both countries residing near their shared border. It is interesting to note that residence permits are very different, in both their classification and duration. Most countries in the region distinguish between temporary residence, in which there is a large variety of classification that generally includes work, study, diplomacy,

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or simple residence (Peru has up to eighteen types of migration classification, while Ecuador has at least seventeen), and also permanent or indefinite permissions, which are issued to foreigners who intend to reside permanently in the country. These classification variations include both countries that require migrants to obtain temporary status before obtaining permanent status (such as Ecuador, under its new law), and countries where permanent residence can be requested straight away (Brazil, Chile, Peru). In fact, the need to verify financial means or work contracts seems to be generalized across various countries (Ecuador’s new law, Brazil, Colombia, etc.), although some countries allow nonlabour residence under other migration categories. Moreover, there are notable variations between countries in the content, conditions of concession, and even classifications of permanent or indefinite residence (simply called “residence” in Peru). On the duration of temporary residence granted, Ecuador grants two years, Mexico four, and Colombia, and, to an extent, Brazil, five. The regulation of cross-border residence is one of the pending issues in the region. This absence is especially relevant for countries such as Brazil and Colombia, who share borders with a number of states and where the mobility of workers across these borders is high. Current state regulations on residence authorizations are not useful for regulating areas like temporary migration, multiple entries and exits, and frequent jobs and housing changes. A 2017 Brazilian law established the recognition of border residents, which allows entry into, and exit from, municipalities located at the border, the exercise of remunerated activities on both sides of the border, broad expression of civil life, and the same guarantees and rights recognized for residents of the general Brazilian regime. The treatment of irregularity is also dealt with, in different ways, by countries of the region. The two agreements noted above on migratory regularization adopted by M E R C O S U R are extremely important. However, on the margins, Agreement 64 / 20 of 2002, between M E R C O S U R , Chile, and Bolivia, is also highly relevant, because it indirectly allows the nationals of these states to be regularized simply by presenting an application, valid passport, and proof of no criminal record. There have also been numerous regularization processes that have taken place at different levels across various countries, such as Argentina in 2004, Mexico in 2015, and Chile in 2018. Peru, for example, allows for the administrative regularization of those in very specific situations, such as minors with a disability who are family

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members of a national or foreigner with residence. In Ecuador, the 2017 Organic Law on Human Mobility allows for the regularization of people without authorization, or who possess expired authorization documents; however, these persons may be subject to fines or expulsion. This situation leaves doubts about whether foreigners with financial penalties, or under order of expulsion, are allowed to request administrative regularization. In the case of Brazil, the country’s 2017 Migration Law (Law No. 13,345) allows persons to apply for a residence permit while residing in Brazil’s national territory, even if they are in an irregular administrative situation. Finally, in the Latin American context, the prominence of the informal economy, at least initially, makes it feasible for migrants to find remunerated work, even if they lack a lawful work authorization. However, without the presence of effective judicial rights protection, this reality puts migrants in a vulnerable position and increases their susceptibility to labour rights violations.

5 A sy l u m a n d R e f u g ee Protecti on When discussing asylum and refuge in Latin America, it is helpful to start by addressing key terminology and concepts specific to the region. It is important to bear in mind that, because of a tradition that dates back to the nineteenth century, and because of the large influx of refugees from the Caribbean in the 1950s, Latin American states soon grew aware of the need to offer an effective collective response, beyond unilateral measures alone. Thus, in 1965, O A S began drafting an outline for a regional convention on refugees that, although it failed to become adopted, raised the profile of the issue, and, ultimately, helped spur the ratification of the 1951 Convention by countries in the region. These advances, combined with the harsh landscape wrought by various Central American civil wars, significant internal displacement flows, and the contemporary international framework that has subsequently taken shape, have helped reawaken an organized civil society and individual states’ need for greater action, pushing the issue back into the public agenda. As a result, from that environment, there grew a need for a flexible framework that recognized people’s lived realities, which would ultimately lead to the enactment of the 1984 Cartagena Declaration on Refugees. This instrument is important for multiple reasons. First and foremost, stemming from the Latin American context, it widens the definition

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of refugee,9 which has been adopted by the majority of Latin American countries, while its proposal of practical measures strengthens the protection of applicants and refugees, which are still valid and have relevance up to today. In this sense, the extended definition of the Cartagena Declaration covers matters pertaining to the entire cycle of forced displacement – from admission and treatment of asylum seekers and refugees, to the search for durable solutions to issues such as internal displacement, to the use of the Inter-American System’s human rights supervisory bodies. Also, the relevance and validity of the Declaration takes on increased significance if we consider its more recent follow-up processes,10 which merit further review. In 2014, thirty years since the proclamation of the Cartagena Declaration, a multi-year process known as Cartagena+30 was completed. This process included four sub-regional consultation meetings (the MERCOSUR countries, the Andean region, Mesoamerica, and the Caribbean region),11 which established the participation of governments, international and regional organizations, ombuds, civil society actors, and academic institutions. These preparatory meetings, in which twenty-eight countries of Latin America and the Caribbean participated,12 formed the Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas. The latter produced important joint work agreements, which, among other things, helped 1) maintain the highest standards of protection at the international and regional level (the so-called Quality Asylum); 2) establish the “Solidarity and Safe Borders” approach, which takes into consideration people who reside, travel, or return to border areas as part of their migration patterns; 3) implement innovative solutions for refugees and displaced persons through a program of “Labour Mobility,” in addition to the already established “Voluntary Repatriation,” “Local Integration,” and “Solidarity Resettlement” programs; 4) create specific programs as an urgent response to the situation of violence of the “Northern Triangle of Central America”; 5) implement the “Eradication of Statelessness” program; and 6) include climate change as a cause of displacement. The Cartagena Declaration and other instruments remain in place as “good faith” commitments by various states, and have varying degrees of influence on countries’ respective national legislative processes. However, this framework of supranational provisions offers a conceptual basis on which the national asylum systems are founded, something that only exists in the field of migration, owing in part to recent supranational integration efforts. This explains why the concept

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of territorial asylum, which dates back to the Spanish-Lusitanian tradition, is well established throughout Latin America, although it was not until its arrival in the Americas that it acquired a special importance. It has since enjoyed a long tradition,13 in part as a response to the political instability that has afflicted much of the region. The concept of territorial asylum thus recognizes “protection that a State provides in its territory by accepting in it certain persons who arrive there persecuted for political reasons and whose life or liberty is in danger in the State of origin.”14 Diplomatic asylum (also called extraterritorial asylum) was intended to serve as a prelude to the granting of territorial asylum, and could be granted only in “legations [diplomatic missions], warships, and military camps or aircraft.”15 Both concepts are part of Latin American history, with noticeable differences in how they are defined. These differences have to do with contemporary understandings of asylum under the 1951 Convention, which extends grounds for persecution while establishing a series of more standardized procedures that limit states’ ability to grant refugee status. Despite these limitations, there have been certain advances – from cooperation and solidarity to conceptual formulations – which have opened up spaces for dialogue across the region. This may contribute to achieving more integrated legislative consensus that can more accurately reflect existing realities in international protection. At the same time, it is necessary to remain cognizant of the enormous challenges that asylum applicants and refugees in the region still face.16 In response, various states are making efforts to improve protection systems, which surely would have gone unnoticed had it not been for the intense efforts of scholars and an organized civil society. Most countries have incorporated specific provisions on asylum (e.g., Chile, Colombia, Mexico, and Peru), as well as administrative structures that feature notable differences in administrative focus. For example, Mexico, like Chile and Argentina, places management of asylum under the responsibility of its Ministry of the Interior. The Ministry of Foreign Affairs deals with this matter in Peru and Colombia. Asylum is usually addressed through a specialized body established within the ministry, in the form of an advisory or management committee, although in some cases, it can be addressed via an inter-ministerial commission (e.g., Argentina, Chile, Colombia). The exoduses of Venezuelan nationals and Haitian migration, both movements produced by a deep political and humanitarian crisis, have put states’ responses to forced migration in the spotlight. The

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Cartagena Declaration provides the broad legal framework to allot coverage and protection to these displacements; however, states’ responses have so far been conveyed through migration regulations (not asylum) via different proposals for extraordinary regularizations, while ignoring the asylum and refugee protection framework.

6 L e g a l P e n a lt ie s o f Admi ni strati ve a n d   C r im in a l Sancti ons While sanctions for violating immigration laws are similar in all of the countries in this edited volume, each country also has various unique forms of sanctions. This variation is based on the causes of a legal infraction and the consequences that such a breach implies. In all cases, however, the national laws provide a system of infractions and sanctions, either expressly and in direct detail (Brazil, Chile, Colombia, Ecuador, Mexico, and Peru), or interspersed throughout legal texts (Argentina). This system may involve sanctions ranging from a fine to deportation or expulsion. The latter sanctions are considered to be of most consequence. In some cases, they are applied for non-compliance or violation of specific legal mandates that are not necessarily related to migration. At the same time, all states provide for administrative expulsion for simply being in the country with irregular migration status, while most states also consider expulsion for committing crimes, known as judicial expulsion. However, countries like Chile and Colombia have laws that cite other grounds for expulsion, related to the protection of generic aims, accompanied by broad and ambiguous interpretative clauses, such as “undermining good manners,” and “representing a risk to the country.” The existence of vague legal concepts in cases of expulsion has allowed administrative discretion to be exercised, which has resulted in arbitrary decisions. Finally, it should be noted that, as a result of the extreme difficulty in carrying out expulsion orders, these orders expire after a few years. This analysis of expulsion would be incomplete without taking into account the regulation detaining foreign migrants and depriving them of their liberties, for not complying with immigration laws. To begin, in Argentina, court-ordered detention is authorized as a precautionary measure, but cannot exceed the time needed to carry out the expulsion (Articles 70 and 71 of Law No. 25,871) within a given territory or jurisdiction of the National Directorate for Migration (Article 72). In Colombia, detention migration authorities are in charge of cases of

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deportation and expulsion in which a foreign person is considered dangerous or presumed to have evaded compliance with a previous sanction, without specifying terms or the location of detention being executed (Article 93 of Decree No. 2,268). In Mexico, the deprivation of liberty that applies in all cases, whether for the purpose of deportation, ­migratory regularization, or assisted return, is called “acomodación” (lodging). This process is carried out in so-called migration stations, and entails an initial detention lasting up to fifteen business days, which can be extended up to sixty business days; these are determined in all cases by an administrative authority, without requiring a judicial intervention (Article 111 of the Migration Law). In the cases of Chile and Peru, none of the measures described above have been legally defined, despite the fact that the Chilean government can indicate to a migrant where they must reside during the expulsion procedure (Article 82 of the 2017 Migration Law). Similarly, Ecuadorian law expressly prohibits depriving or restricting migrants’ rights to personal liberty, with the objective of enforcing deportation. In regard to guarantees against expulsion, the recognition of the right to defence is fundamental. As a result, special concern is given to providing legal advice, independently monitoring administrative discretion, as well as supervising strict compliance with legal principles. These guarantees are essential for a broader understanding of the regulation of expulsions, even though, as presented throughout the book, such guarantees are not always recognized by national legislations. Although the majority of countries in the region provide for judicial control interventions, which serve as a guarantee against expulsion procedures, these interventions are not always effective. In Chile, for example, it is rare to be granted an opportunity to appeal an expulsion order. On other occasions, judicial intervention is limited to formal controls and operates automatically, so that a migrant’s lack of residence permit overrides other interests, such as their length of residence or their degree of integration in the country. In Mexico, up until now, the role of the courts has been very conservative. As a result, there is no jurisprudential limit on the protection of the rights of persons with expulsion orders. In the case of Argentina, the country’s high courts apply a test of reasonableness, or weighting, in cases of expulsions of persons with more than twenty years of residence. However, this position is not generally followed by lower courts. Chile’s national regulation stands out because it is the only country, out of all those analyzed in this edited volume, that penalizes “clandestine” entry. Its Decree-Law No. 1,094 provides for a penalty of a

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prison sentence (Articles 68 and 69). In the case of a migrant overstaying their legal residence, this violation is initially punishable by fine, although it can be raised to include expulsion. It is also noteworthy that both the migration laws of Mexico and Argentina, despite being originally created as administrative norms, include articles that outline specific conducts considered to be criminal and, therefore, criminally punishable. This means that the laws feature a generic sort of criminalization of migration. Punishable offences are considered to be those that violate the rights of migrants and encourage or facilitate entry or stay without authorization. The fact that punishable offences are provided for in migration laws thus appears strange in this context, because most countries cover these issues through their penal code. Finally, we should recall that the terms deportation and expulsion are not synonymous, nor do they originate from the same assumptions in all Latin American countries, although the outcome is the same – ensuring that the person leaves the country’s territory. For example, in Brazil, Colombia, Ecuador, and Mexico, deportation is a sanction applied to foreigners for breaching or violating immigration regulations (or closely related violations), such as entry and stay without authorization. However, in the cases of Colombia (Articles 89 to 91 of Decree No. 2,268) and Ecuador (Article 147 of LOMH), expulsion is linked to a criminal conviction received by foreigners. In the case of Colombia, and similarly in Brazil (Articles 65 to 75 of Law No. 13,347), however, expulsion can also be applied when a foreigner represents a danger to security or public order, or has committed specific crimes. In the case of Mexico (Article 33 of the Constitution), expulsion can also be applied to certain activities prohibited to foreigners and linked to political participation. This not only demonstrates that these terms may have different meanings and implications in each country, but also reflects different perceptions about the nature and scope of measures aimed at removing foreigners.

7 M ig r at io n P o l ic ie s a nd I ntegrati on The studies found in this edited volume all demonstrate that although the integration of immigration has become an increasing priority for supranational organizations, and is included in various countries’ objectives, it still lacks a political or normative framework, as exists in other regions of the globe. As mentioned earlier, integration had

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already been mentioned as one of the areas of action of the South American Conference on Migration (S ACM ) I I , which took place in Chile in 2001. The issue was linked in subsequent meetings to the enjoyment of the right of residence, as well as to assisting and protecting migrants’ human rights, but it did not emerge as a central issue until the 2006 and 2007 conferences, where the need to ensure the effective insertion of migrants in host societies was raised.17 However, civil society continues to demand that these issues be addressed.18 MERCOSUR, in turn, has indirectly approached integration by going beyond the initial focus on immigration control and access to social rights and has sought to: regulate the mobility of social security contributions and benefits in 1998; consolidate labour rights through the Social and Labour Declaration in 2001; and focus on a social agenda, which included regularization agreements and improvements in the conditions of residence and equality of civil rights, labour, and family reunification in 2002, as well as specific residence and work regimes for entrepreneurs, students, etc., which would culminate in the MER C OSUR Citizenship Action Plan. To a degree, the CAN , with its Andean Social Security system and the Andean Labour Migration Instrument, has advanced the social protection of migrant workers. And, although the I A C H R has not taken a clear position on the concept of integration, it has affirmed that certain forms of discrimination can constitute a central element that prevents social and cultural integration, and can have negative effects on irregular migrants. However, although all of these advances lay the foundations for a shared approach to integration, this remains a peripheral issue to the proposals of supranational organizations. Similarly, for most of the states analyzed in this book, it is hard to identify a consistent and articulated approach to integration. Thus, while the notion of integration surely guides many of the actions of relevant authorities, without a political or normative frame of reference interventions in this area are fragmented, with local authorities taking credit for the actions taken. This contrast is observed both in countries with legislative frameworks for foreigners established in very different historical contexts marked by a security focus, such as Brazil, and, paradoxically, also in countries that have modified their most recent regulations, such as Ecuador’s new Organic Law on Human Mobility, which assigns the integration of the migrant population to local levels of government. For its part, under the former government of President Michelle Bachelet, Chile had begun discussing

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a bill on the topic.19 And the current government of President Sebastián Piñeira discussed a normative project. In both cases, these initiatives barely mentioned integration or defined its main elements.20 Instead, migration management continues to be placed under the purview of ministries more inclined toward a securitist approach, such as the Ministry of the Interior and Public Security. These ministries continue to apply the approach mentioned above, despite the fact that a theoretical basis for change has been established, and even as the country’s Constitutional Court has supported the need to move toward new standards in this regard. This means that, in the absence of a national immigration policy, the prevailing approach to integration remains limited and partial. At the same time, Chile is taking actions to integrate immigration in increasingly diverse ways, involving different public services, regional governments, and local entities in matters such as health, education, and housing. Peru, however, stands as an exception at this point. Its 2017 Legislative Decree No. 1,350 clearly articulates social integration as one of the three principles of its immigration legislation, linking this concept to the regularization of migrant status and the protection of migrant rights with full respect for their dignity. These rights extend to other areas, including health, education, and work under conditions of equality with nationals, as well as the right to family life; the laws’ regulations also extend migrants’ access to social services and benefits. Argentina has also established regulations aimed at the social integration of migrants by recognizing some rights, such as Spanish-language training, and protecting and promoting migrant cultural traditions, religion, etc. Surely this initial analysis requires further nuance, since, in matters of integration and regional mobility policies, and given the historical and cultural features common to most Latin American countries, specific integration efforts, such as learning a national language, are not necessary. Integration policies are framed in a broader context linked to more complex and far-reaching policies, such as guarantees of access to rights (especially social rights, such as housing, work, health, and education), recognition and stability of residence, and the fight against racism and xenophobia. These are specific areas that should be assessed to understand whether the objectives outlined in the preambles of states’ normative texts have achieved tangible results. Within the group of countries with legislative frameworks that appear uninfluenced by historical context, such as Brazil, the persistence of restrictive legal frameworks for residents’ economic and

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political activity hinders migrants’ effective integration, despite the country’s effort to adopt proactive integration measures for refugees. There is thus a need for a framework that facilitates equality. Various states feature national organizations dedicated to mitigating the structural inequality suffered by immigrants. This can be seen in the case of Ecuador and its National Equality Council, which is responsible for generating public policies in the field of mobility and equality (although it lacks powers of coordination between administrations). Beyond the general clauses of equality found in various constitutions and states’ laws, many alien and immigration regulations lack antidiscrimination clauses regarding foreigners. This is one of the criticisms of Peru’s Legislative Decree No. 1,350, which is still a limitation given the existence of various state platforms to combat racism that could benefit from the existence of such legislative clauses. All of this presents significant challenges to crafting the transformative dynamics necessary to contribute to social integration. Currently, theoretical and political debates are still in a relatively preliminary stage, largely playing a secondary role among the legislators who have addressed migration. Some states, however, have become aware that this is a key issue in need of attention, and have taken important steps to establish the foundations of a more robust legal regime that recognizes social rights and measures to promote equality (Ecuador and Peru); some states have even established nascent frameworks on integration measures (Argentina, Chile, Peru, and, to some extent, Brazil), although they still require greater articulation and development. Meanwhile, in other countries (Mexico and Colombia), progress has been made in some of the previous aspects, but minimal progress has been made on general themes of integration, on which political and legislative debate has barely begun.

8 C o n c l usi on In recent years, there has been growing pressure on Latin American countries to allow for increased intra-regional migration flows. This trend has generated significant advances, in increased regulation by national institutions and supranational processes, which has resulted in a clearer and more concrete regulatory framework of mobility. Accordingly, the vast majority of Latin American states have enacted new legislation that leaves former policies of repression or indifference behind, with the MERCOSUR Residence Agreement representing the

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opening stages of a larger process of regional migration-related integration. These legislative and regional advances for the concessions of visas, residence authorizations, administrative regularization processes, and challenges to orders of deportation and expulsions, among others, have experienced significant regulatory development, especially the modernization of administrative management systems. In the case of Latin American states, the administration and management of foreigners has been characterized by broad discretion, which, in many cases, becomes entirely arbitrary. In this sense, the processes of legislative modernization have largely depended on administrative transformation and budgetary reorganization, inter-administrative collaboration, and the application of guarantees and administrative principles to the field of migration management. It is also appropriate to emphasize that the scope of the regulation of the recognition of rights, irregular migration status, access to labour market, guaranteeing the principle of equality, and the fight against racism and xenophobia, will depend largely on elaborating and planning public policies by creating specialized programs and services, and rapid response instruments in the face of regional crises, among other factors. Given the diverse backgrounds of Latin American states, the main challenge facing such efforts, after beginning a process of regulatory modernization, will undoubtedly be the necessary administrative reorganizing of immigration, allocating money in budgets to develop programs in the field of immigration, and integrating and configuring public policies. Simultaneously, the recent crises in Venezuela and Nicaragua show that, from an asylum, refuge, and temporary protection perspective, states’ isolated responses are insufficient to address the challenges presented by massive humanitarian crises. Although autho­ritarian and xenophobic reactions cannot be ruled out, common collaboration mechanisms need to be instituted. In a context of free regional mobility, unilateral actions taken by individual states are not only ineffective, but also extremely harmful. In response to such crises, planning common and coordinated responses within the framework of supranational institutions, such as MERCOSUR, is necessary, as well as multilevel, institutional coordination and collaboration procedures and instruments. Interestingly, the existence of international provisions that are regional has favoured substantive regulations in the area of asylum. These provisions have been influenced by the Cartagena Declaration, which is linked to a long-standing tradition and served in combination

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with the 1951 Convention. These instruments feature different national regulations, and, although they have been revitalized in recent decades, they should undoubtedly be updated and deployed to deal with current migration trends. Other areas to address are the development of visas and humanitarian residences within the framework of a protection system outlined by the Cartagena Declaration.

Not e s  

1 Jorge Martínez Pizarro, Verónica Cano Christiny, and Magdalena S.

Contrucci, Tendencias y patrones de la migración latinoamericana y caribeña hacia 2010 y desafíos para una agenda regional, Population and Development Series No. 109 (Santiago de Chile: United Nations and CEPAL, 2014), https://repositorio.cepal.org/bitstream/handle/11362/37218/1/ S1420586_es.pdf; Adela Pellegrino, La migración internacional en América Latina y el Caribe: Tendencias y perfiles de los migrantes, Population and Development Series No. 35 (Santiago de Chile: United Nations and CEPAL, 2003), https://repositorio.cepal.org/bitstream/handle/11362/7172/1/ S033146_en.pdf); Víctor H. Rentería Pedraza, “Panorama socioeconómico de la migración internacional originada en América Latina y el Caribe: estado de la cuestión,” Acta Universitaria 25, no. 2 (2015), http://dx.doi. org/10.15174/au.2015.665.   2 According to the Pew Research Center, in 2013 there were a total of 53.96 million people of Latino origin in the US, including: 34.58 million Mexicans (64.1 per cent Latinos in the US); 1.98 million Cubans (3.7 per cent Latinos); 1.97 million Salvadorans (3.7 per cent Latinos); 1.78 million Dominicans (3.3 per cent Latinos); 1.30 million Guatemalans (2.4 per cent Latinos); 1.07 million Colombian (2 per cent Latinos). The rest of the figures can be consulted here: http://www.pewhispanic. org/2015/09/15/the-impact-of-slowing-immigration-foreign-born-sharefalls-among-14-largest-us-hispanic-origin-groups.   3 They even evolved into mutual coordination mechanisms, such as “Operation Condor.”   4 For example, as of 1840, the Venezuelan legislation already excluded the “detrimental to the country,” although it did not finish defining this group until the immigration laws of 1912–18, which included: “1. Individuals who are not of European race or insular of yellow race of the North hemisphere; 2. Individuals older than sixty years […]; 3. Individuals of bad habits, the lazy, those who have no honest profession, or the disabled with

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disabilities that constitute a public charge, or those who suffer from contagious diseases; 4. Those who have been condemned to prison and have not obtained rehabilitation according to the laws of their country, except for political reasons.”   5 Francisco J. De Lucas Martín, “Globalización, migraciones y derechos humanos. La inmigración, como res política,” Cuadernos Electrónicos de Filosofía del Derecho, no. 10 (2004).   6 For example, the International Convention on the Protection of the Rights of All Migrant Workers and Their Families of the United Nations, which the vast majority of Latin American countries have ratified.   7 As is the case of Chile, where the most profound legislative changes rest on the “Instructions” section, which are still considered infra-regulatory guidelines.   8 Argentina, Bolivia, Chile, Colombia, Ecuador, El Salvador, Guatemala, Honduras, Mexico, Paraguay, Peru, and Uruguay. Brazil has not done so, as detailed in this volume.   9 The Declaration extends the 1951 Convention by also considering as refugees “people who have fled their countries because their life, security or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, the massive violation of human rights, or other circumstances that have seriously disturbed public order.” 10 In 1994 (tenth anniversary), the San José Declaration on Refugees and Displaced Persons was adopted, which analyzed its importance as a tool for protection of, and role in affecting, the situation of internally displaced persons. In 2004 (twentieth anniversary), the Declaration of Mexico was established, and, for the first time, a Regional Action Plan (Action Plan of Mexico) was created. This action plan introduced “solidarity programs,” which have promoted the protection, and achievement, of durable solutions. 11 It should be noted that, although these meetings were held by region, there were networks at national levels that established proposals based on local needs, and were later submitted to consensus at regional meetings. 12 This supposes a great majority, taking into account that the continent comprises thirty-five countries. 13 Territorial asylum has already been recognized since its inclusion in the Montevideo International Criminal Law Treaty of 1889, and it would be systematically incorporated in the following conventions: the Convention on Asylum (Havana, 1928), the Convention on Political Asylum (Montevideo, 1933), the Treaty on Asylum and Political Refuge (Montevideo, 1939), Treaty of International Criminal Law (Montevideo, 1940), Conventions on Territorial Asylum and the Diplomatic Asylum Convention (both in Caracas,

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1954); the American Convention on Human Rights (San José, 1969); and, finally, the Declaration of Cartagena (Cartagena de Indias, 1984). 14 Manuel Diez de Velasco, Instituciones de Derecho Internacional Público (Madrid: Editorial Tecnos, 2000), 522. 15 Art. 1 of the Caracas Convention on Diplomatic Asylum (1950). The idea of diplomatic asylum was intended as a springboard for territorial asylum. A person could thus be temporarily sheltered in one of these locations with the aim of achieving transfer to the territory of the state granting protection, in which case the person would proceed to request territorial asylum itself. Initially, diplomatic asylum was based on an extraterritorial application of sovereignty. However, the United Nations found that this application harmed the very principle of sovereignty. This caused a change in how it was understood, which allowed it to remain; it was later justified based on the principle of inviolability of diplomatic headquarters. 16 For example, U N HCR has indicated that “the inclusion of pre-admissibility procedures, extremely short deadlines for the filing of applications, and the regulation of accelerated procedures for fraudulent or manifestly unfounded or abusive applications without due procedural safeguards, could contravene the right to seek and receive asylum, as contemplated in the inter-American human rights instruments.” 17 For a review of the evolution of the conferences and their contents, see Doña Reveco and Feddersen “Migration Regimes in South America: The South American Conference on Migration” in this same volume. 18 “Declaration of civil society organizations before the X IV South American Conference on Migration,” http://madenetwork.org/sites/default/files/PDF/ Declaracion-OSC-XIV-CSM-Lima-2014-Version-Final.pdf. 19 Immigration and Immigration Law Project, sent to Congress on 4 June 2013. 20 Except in Art.131.h), which indicates that the Ministry of the Interior and Public Security will be responsible for “dictating norms for its integration.” The Draft Law was sent in August 2017 to the Congress of Deputies, where it was in process at the time of writing this volume.

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Contributors

Alba Alonso is an expert in the study of human trafficking with an LLM in international human rights and an MS in migration studies. She works as a legal and advocacy officer on protection, assistance, and judicial reparation for victims of trafficking and asylum seekers in Latin America and Europe, and participates in master’s degree programs as a lecture-specialist in areas such as migration policies, asylum, and human trafficking. She is also an international consultant and trainer in institutions such as the International Labour Organization (ILO) and the American Bar Association, among others. J av i e r A rc e n t a l e s I l l e s c a s is a lawyer at the Pontificia Universidad Católica del Ecuador, Quito, and holds a master’s in law with an emphasis on constitutional law and a higher diploma in migration and development in FLACSO-Ecuador. He is senior researcher in human rights at the Universidad Andina Simón Bolívar. V a ler ia A ro n Sa i d is a political scientist and researcher specializing in migration, refugee, and human rights with a focus on Latin America. Aron has consulted for various institutions, such as Peru’s Ministry of Education and Ministry of Foreign Affairs, and the Migration Policy Institute. jaime Bassa Mercado is a professor of constitutional law at the Universidad de Valparaíso who holds a PhD in law from the Universitat de Barcelona, and master’s degrees in law and in philosophy, both from the Universidad del Valparaíso. He has been the director of the Political and Constitutional Studies Centre of Valparaíso since 2018. Currently,

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he is vice-president of the Constitutional Convention in Chile. His main publications are Constituyentes sin poder: Una crítica a los límites epistémicos del derecho moderno (Editorial EDEVAL, 2019) and Chile decide: Por una nueva Constitución (Editorial Planeta, 2020). Natalia Caicedo Camacho is an associate professor of constitutional law at the University of Barcelona. Her ongoing publications include migrants’ access to social rights, gender perspectives in migrants’ rights, and migration policies. She is the author of several academic works and coordinated the Spanish version of this book. Her most recent publication was “Social Rights and Migrants before the European Court of Human Rights,” in Aliens before the European Court of Human Rights: Ensuring Minimum Standards of Human Rights Protection, ed. David Moya and Georgios Milios (Leiden: Brill / Nijhoff, 2021). K a r los C ast i l l a is a researcher at the Institut de Drets Humans de Catalunya and professor at the Universitat Pompeu Fabra in Spain. He holds a PhD from the Universitat Pompeu Fabra, and has done postgraduate studies in public international law and international relations from the Universidad Complutense and human rights and democratization processes from the Universidad de Chile. His areas of research are international human rights law, constitutional law, and migration, and has made relevant academic contributions (books and articles) in those areas. Soledad Castillo Jara holds a BA in political science from the Pontificia Universidad Católica del Perú. A former research assistant at the Universidad del Pacífico in Lima, Castillo works on the politics of migration in Latin America, with an emphasis on Venezuelan migration to Peru, and has published widely on the effect of Covid-19 on migrants and refugees in the region. G a r den i a C h áv e z Núñe z is a professor in the Andean Human Rights Program at the Universidad Andina Simón Bolivar in Ecuador. She is an anthropologist from the Universidad Politécnica Salesiana, Quito, and holds a master’s degree in Latin American studies, with a major in cultural policies from the Universidad Andina Simón Bolívar, Ecuador Headquarters, Quito.

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Cristián Doña-Reveco is director of the Office for Latino / Latin American Studies and associate professor in the Department of Sociology and Anthropology at the University of Nebraska at Omaha. Doña-Reveco researches migration decisions, migration policy in Latin America’s Southern Cone, and the relations between the nation-state and migrants. Mayra Feddersen is an assistant professor in the Faculty of Law at the Universidad Adolfo Ibáñez in Santiago, Chile. Her ongoing research is about the semantic evolution of the migration policies of Argentina, Bolivia, Chile, Colombia, Ecuador, Peru, and Uruguay between 1900 and 2018 in the framework of the Fondecyt Iniciación Project No. 11200018 (2020–22). Her most recent publications are Manual de Derecho Migratorio Chileno (Thompson Reuters, 2021) and “The Persistence of the Security Paradigm in the Regulation of Entry Requirements in the Chilean Immigration Law,” Oñati SocioLegal Series (forthcoming). Luisa Feline Freier is an associate professor of political science at the Universidad del Pacífico in Lima, Peru, and I D R C Research Chair on Displacement in Latin America and the Caribbean. Her research focuses on migration and refugee policies and laws in Latin America, South-South migration, and the Venezuelan displacement crisis. She has published widely in both academic and media outlets, and has provided advice to various international institutions and organizations, such as Amnesty International, I C R C (International Committee of the Red Cross), I D B (Inter-American Development Bank), I O M (International Organization for Migration), U N H C R (United Nations High Commissioner for Refugees), the World Bank, and the E U. Professor Freier is Migration Research and Publishing High-Level Adviser of the I O M. Lila García is a tenured senior research fellow at the National Research Council – Research and Teaching on Human Rights Centre at the Universidad Nacional Mar del Plata (UNMdP ) in Buenos Aires, Argentina. She holds a PhD in international law from the Universidad de Buenos Aires and a master’s in international relations from the UNMdP. She is also an assistant professor in political science at UNMdP in Argentine foreign policy and contemporary international politics.

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Lau r a Ga rc í a - J ua n is a professor at the Universidad Pontificia Bolivariana in Colombia. Her last publication was “The Disruptive Regularisation Mechanism in the Spanish Law that Challenges the Reform of the Common European Asylum System,” (Migraciones, 2021). Her research is ongoing at the Max Planck Institute for Comparative Public Law and International Law, with a contribution to the book The Labour Dimension of Transforming Constitutionalism in Latin America: Construction of an Ius Commune (Mexico: UNAM, forthcoming). David Moya is a professor of constitutional law at the Universitat de Barcelona (UB), where he co-ordinates the Migration Legal Clinic and is the co-coordinator of the interuniversity Master’s program in contemporary migration (U A B  / U B ). Ongoing publications include migration legislation reforms in the E U , the rights of forced migrants before the European Court of Human Rights, the problems of growing arbitrariness in migration / asylum legislation and policies, and refugees’ access to effective protection. He is currently principal researcher (with Dr Sonia Parella) of a national research project on forced marriages in Spain and legal expert of a European project on the topic. Lucila Nejamkis is a researcher at the Technological and Scientific Research National Council (CONICET) of Argentina. She is an associate professor at the Universidad Nacional Arturo Jauretche and an associate researcher at IDAES (Universidad Nacional de San Martin, UNSAM). She co-directs the Migration Studies Centre at IDAES, and her work focuses on migration in Argentina and MERCOSUR through a variety of frameworks dealing with public policy, the state, nationality, citizenship, and human rights. J o s é A n tô n i o P e r e s G e d i e l is a full professor of law at the Federal University of Paraná. He is coordinator of the Sérgio Vieira de Mello Chair – U N H C R (2013–18), and his research focuses on human rights, democracy, and social conflicts. He is author and editor of Refúgio e hospitalidade (Curitiba, Brazil: Kairós Editions, 2016). Felipe Sánchez Nájera is director of research and public policy at the think tank México Unido Contra la Delincuencia AC. His areas of research are migration, international protection, statelessness, security, drug policy, and enforced disappearances. His most relevant

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publications are: “The Cartagena Refugee Definition and NationalityBased Discrimination in Mexican Refugee Status Determination” (with F. Freier, International Migration, 2021) and “The Right to Seek and Receive Asylum,” (with S. Corcuera, in Mexican Political Constitution: A Commentary [in Spanish], Supreme Court of Justice, Tirant lo Blanch, Mexico). F e r n a n da T o r r e s V i l l a r u b i a is a PhD candidate at the Universitat de Barcelona and the Universidad de Valparaíso in Chile. She also holds a master’s in law and public litigation from the Universidad Andrés Bello. She has worked at the Chilean Ministry of the Interior as lawsuit coordinator and head of Nationality, has been head of the Antogafasta regional office of the Human Rights Institute, and has represented the Chilean government in O AS and U N H CR in cases of human trafficking and statelessness. She has published academic works on migration and integration processes, and her last publication was “Interculturalidad y D E S C ,” in Interculturalidad y reconocimiento Escritos interdisciplinares, ed. Zuchel, Astrain, and Albertsen (Editorial Universidad Técnica Federico Santa María, 2019).

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Index

access. See citizenship, access to; justice, access to; nationality, access to American Convention on Human Rights, 20, 228, 253, 328, 358, 359 amnesty, 51, 71, 81 Andean Community (can ), 4, 242, 280, 295, 298, 299, 301–2, 316, 332, 360 Andean Instrument of Safety and Health at Work, 242 Andean Instrument of Social Security, 294, 298, 299 Andean Labor Migration Instrument, 243, 294, 298, 312, 360, 371 Andean Migration Card (TAM ), 243, 295, 360, 363 Andean Passport, 243, 298, 360, 363 Andean Social Security System, 294, 371 apostille, 114, 115 arbitrariness: 5, 70, 71, 92–96, 115, 124, 125, 137, 139, 160, 168, 198, 258, 261, 374 asylum: 362, 364; application, 20, 53, 54, 55, 88, 111, 118, 119, 150, 151, 152, 195, 203, 211,

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212, 239, 240, 249; in Latin America, 365; law on asylum in Peru, 239; legislation, 8; policy, 229, 315; political asylum, 187, 190; procedure, 56, 57, 108, 109, 116, 118, 119, 120, 121, 187, 189, 190, 194, 198, 231, 238; protection, 368, 374; regulation, 374 request, 190; rights, 63, 117, 120, 128, 159, 201, 205, 296, 214, 242, 261, 352, 358; seekers, 68, 116, 118, 119, 193, 203, 215, 238, 241, 264, 266, 350; treaties, 358 Berne Initiative, 311 Border Mobility Agreement, 282 borders, 34, 54, 84, 112, 126, 202, 210, 215, 256, 281, 282, 287, 296, 297, 313, 357, 364, 366 Cairo Program of Action, 311 Canada, 30, 155, 157, 161, 177, 179, 316, 317, 331 Cartagena Agreement, 293, 294 Cartagena Declaration, 6, 21, 31, 56, 57, 88, 117, 120, 188, 189, 196, 212, 240, 358, 365, 366, 368, 374, 375

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386 Index

children: protection, 87, 111, ­113–16, 135, 191, 192, 205, 214, 237, 243, 244, 261, 263, 264; rights, 87, 88, 89, 98, 99, 114, 223, 230, 255, 292, 293 citizenship, 5, 8, 10, 12, 35, 36, 59, 69, 78, 159, 163, 165, 174, 251, 286, 290, 291, 300, 302, 321, 322, 324, 328, 329; access to, 78, 113, 115, 116, 191, 193, 221 civil rights: 21, 23, 127, 352, 371; due process, 32, 88, 96–98, 115, 119, 121, 130, 131, 137, 168, 169, 171, 205, 241, 256; ­freedom of movement, 23, 36, 60, 199, 205 242, 255, 281–3, 285, 287, 300, 363; property, 20, 21, 60, 186, 229, 295, 259, 260, 261, 268, 272, 328, 256, 359; religion, 21, 23, 372; right to marriage, 205 civil society, 314, 317, 319 , 321, 323, 330, 333, 343, 345–6 Colombian emigration, 106–8, 349 consul: consular policies, 95, 282, 284, 287, 319, 232, 327, 331; consular protection, 160, 200, 205, 208, 237, 255, 259, 263, 284, 299, 351; consular visa, 269 consulate, 60, 82, 108, 111, 114, 116, 186, 198, 205, 230, 284, 288, 300 Convention of Civil and Political Rights, 20, 188, 228, 263, 269, 328 Convention on Diplomatic Asylum, 20, 228, 358 Convention on the Protection of the Rights of all Migrant

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Workers and Members of their Families, 20, 25, 65, 86, 188, 228, 233, 254, 255, 310, 311, 330, 337, 358, 363 Convention on the Reduction of Statelessness, 20, 25, 228, 253 Convention Relating to the Status of Refugees, 6, 30, 49, 56, 57, 69, 88, 117, 118, 120, 126, 188, 189, 196, 228, 240, 365, 375 Covid-19, 6, 17, 37, 112, 109 cross-border mobility, 4, 54, 110, 112, 208, 282; migration 17, 151; residence 364; workers 324 democratic rule or order, 59, 82, 84, 70, 90, 125, 139, 141, 181, 223, 252, 272, 346, 349, 382 356, 361 deportation: policies, 10, 11, 26, 71, 91, 98, 163, 167, 187, 202, 260, 261, 268–70, 274; procedure, 26–9, 66, 67, 84, 107, 117, 130, 136–9, 170, 171–2, 207, 208; rights, 28, 130, 136–9, ­171–2, 207–8 detention, 11, 16, 27, 66, 139, 171, 204, 207–9, 236, 248, 257–60, 368, 369 dictatorship, 15, 16, 49, 52, 77, 84, 163, 187, 223, 348, 350, 354, 358 diplomacy: diplomatic asylum 56, 57, 122, 190, 198, 205, 206, 229, 240, 367; diplomatic ­pressure 302, 362; ­diplomatic ­protection, 229; ­diplomatic power, 314 discrimination, 60, 63, 67, 68, 92–4, 98, 127–9, 133, 160, 167,

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Index

168, 205, 237, 238, 260, 265, 268–70, 294, 299, 300, 329 El Salvador, 213, 317, 349, 331 elites,15, 20, 47, 149, 222 economic integration, 280–2, 284, 293, 294 emigration, 50, 106–8, 149, 165, 190, 282, 284, 299, 311, 325, 336, 337, 339, 349, 350 entrance, 22, 26, 42, 151, 192, 196, 227, 261, 292 entrepreneur, 290, 363, 371 European immigration, 22, 46, 47, 106, 186, 226 European Union, 317, 321, 333, 345 equality: differences in, 266; ideal of, 78; before the law, 77, 91–5, 127, 164, 237, 260, 269; of opportunity 65, 255; material equality, 294; among people, 79; principle of, 11, 12, 16, 33, 127–9, 132, 160, 163, 167, 168, 265, 269, 272, 300, 351, 373, 374; right of, 223, 242, 270; of rights, 69, 91, 92, 94, 285, 289, 291, 294, 371, 372; of treatment, 16, 60, 65, 243, 255, 294; of trial, 141 ethnicity, 80, 92, 106, 129, 205, 206, 222, 265, 267, 279, 267–70, 334, 335, 338, 339 exodus, 149, 156, 165, 172, 173, 188, 211, 332, 349, 350, 362, 377 expulsion, 370; administrative, 368; appealing an expulsion, 97; in Argentina, 368, 369; in Chile, 369; collective expulsions,

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387

260–2, 352; in Colombian ­legislation, 136–9, 369; decree, 98; in Ecuador, 171; forced, 349; grounds for, 34, 91, 94; ­guarantees against, 369; judicial, 368; measures, 97, 98; in Mexican legislation, 185, 187, 204, 206, 207; model of, 5; order, 70, 96, 98, 368; in Peru, 226, 235–7; procedures, 10, 67, 95, 141, 284; protections against, 270; regimes, 8, 9, 65–7; ­regulations, 26–8, 136; as ­sanction, 368; systems, 12; vetoes on, 52; visa c­ ancellations due to, 124 family, 121, 368–70; compensation fund, 133; life, 139, 265, 372; members, 32, 66, 121, 197, 259, 364; migration, 107; motives, 140; needs, 227; origin, 127; protection of, 261; reunification, 5, 9, 21–3, 26, 28, 34, 52, 60, 66, 70, 96, 98, 123, 124, 232, 288, 289, 300, 371; situation of ­foreigners, 139; subsidy, 133; ties, 24, 25, 27, 97, 270; visits, 158 forced migration, 4, 47, 56, 57, 118, 120, 173, 289, 348, 367 foreigners, 78; amnesty to, 51; ­anti-discrimination regarding, 373; arrival of, 185; in Chilean legislation, 87; deportation of, 71, 84, 136, 137, 139, 171, 207, 370; discrimination toward, 63, 93; in Ecuador, 350; expulsion of, 52, 65, 136, 138, 204, 206, 370; immigration of, 54;

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388 Index

i­ntegration of, 16, 29, 85; ­judicial resolution involving, 257; lack of documentation, 189; management of, 374; ­naturalization of, 20, 58, 84, 186, 192, 223; pernicious, 190; in Peru, 226; prejudice toward, 49, 87; principle of equality for, 127, 351; protection of, 160; refugee status for, 196; regularization of, 81, 109, 170, 199, 243; requirements for, 222; residence, 27, 29, 83, 84, 94, 201, 269, 270, 364, 365; restricting entry of, 215; rights, 20–4, 33, 49, 59, 60, 63–5, 67, 87, 92, 93, 95, 127–30, 132–4, 138, 141, 160, 206, 223, 228, 263, 352; status of, 163, 353; stay of, 124, 202, 225; unequal treatment of, 252, 272, 353; welfare benefits for, 61, 62 gender, 86, 127, 189, 196, 205, 206, 265, 267, 269, 270, 323, 328, 334, 335, 338–54, 380; gender-based approaches to migration policies, 339; ­gender-based persecution, 196; gender-based violence, 117 Global Commission on International Migration, 311 Global Compact for Migration, 314, 323, 343, 346 globalization,13, 79, 99, 250 governance, 5, 9–11, 85, 229, 309, 311–14, 318, 321–3, 326, 327, 336–9, 341, 357 Haitian migration, 50, 53, 68, 81, 261, 322, 267

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higher education, 232 highly qualified or highly skilled migration, 49, 108, 109, 132, 225, 283, 291, 301, 350 Honduras, 210, 212, 267, 317, 331, 349 humanitarianism, 26, 28, 31, 50, 53, 55, 57, 68, 70, 156, 158, 172, 174, 175, 190, 193, 197, 200, 201, 206, 215, 229–31, 233, 234, 244, 332, 334, 335, 367, 374, 375 human mobility, 3–6, 10, 12, 85, 108, 147–67, 169, 172, 183–75, 223, 280, 300, 340, 355, 359, 360, 365, 371 human rights, 315, 316, 319–24, 326–38 human trafficking, 68, 88, 89, 153, 158, 164, 165–6, 292, 293, 301, 315, 319, 322, 324, 327, 349; national plan to combat human trafficking (Brazil), 65 Inter-American Commission of Humans Rights, 11, 91, 124, 148, 213, 259, 359 Inter-American Court of Human Rights, 8, 118, 253, 265, 293, 359; Blake v. Guatemala, 257; Dominicans and Haitians v. The Dominican Republic, 261; Lopex Loor v. Panama, 260, 270; Nadege Dorzema et al. v. the Dominican Republic, 261; Pacheco Tineo Family v. Plurinational State of Bolivia, 261; Tivi v. Ecuador, 258, 259; Yean and Bosico v. The Dominican Republic, 259

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Index

integration: of migrants or ­refugees, 29, 68, 69, 82, 206, 231, 238, 323, 325, 335, 338, ­369–73, 374; policies, 9, 67, 231, 280, 372 irregular migration, 11, 16, 33, 82, 136, 153, 258, 170, 172, 175, 190, 199, 200, 208, 209, 211, 229, 230, 232, 235, 244, 261, 264, 315, 322, 368, 371, 374 interculturality, 328 investment, 108, 186, 225, 229, 334, 335, 350 justice, access to, 23, 33, 96, 97, 260, 323, 327, 329 labour rights, 16, 33, 65, 79, ­131–3, 232, 268, 269, 272, 295, 299, 349, 365, 371 liberalization, 107, 181, 287 Lima Group, 332, 362 low-skilled migration, 108, 285 me rc o s u r, 34, 35, 36, 50, 170, 281, 312, 316, 317, 320, 324, 329, 332, 345; citizenship 5, 12, 35, 36, 290, 291, 361, 363, 371; Residence Agreement, 5, 9, 12, 16, 35, 50, 54, 242, 287, 288, 289, 290, 291, 301, 303, 312, 324, 361, 362, 373; visa 109, 151, 283–5, 363 migrant caravan, 213–15 Migratory Border Transit Card, 110, 112 minorities, 69, 252, 268 minors, 23, 66, 99, 111, 114, 116, 192, 214, 230, 231, 237, 286, 289, 292, 293, 301, 364

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389

mobility: benefits, 284; border, 110; Border Mobility Agreement 282; can, 295, 296, capabilities, 210; categories, 35; 298–300, 312; challenges to, 322; ­clandestine, 255; Colombian, 150, 151; ­control of, 162; ­controls, 297; crisis, 140; ­cross-border, 4, 112; Ecuadorian, 154, 156; forced, 111, 347; free, 159, 164, 242, 281, 296, 323, 351; governance of human mobility, 5; human mobility, 3, 4, 6, 10, 12, 85, 108, 147, 148, 158, 160, 161, 164–6, 169, 172, 173, 175, 223, 280, 340, 355, 359, 360; internal, 165; international, 153, 175, 186; intra-regional, 282; labour, 361, 363, 366; in Latin America, 156, 373; l­egislation, 163; merc osur ’s mobility ­agreements, 242, 281, 291, 301; migration, 281, 285, 287, 301; Quito Declaration on Human Mobility of Venezuelan Citizens in the Region 174; regime, 298; regional, 286, 302, 347, 362, 372, 374; ­regulations on human mobility, 166; ­restrictions, 112; right to, 5, 10, 70, 290; rights, 27, 158, 159, 161, 162, 164, 167, 172, 175, 302, 351; of settlement, 35; short-term, 283; of social s­ ecurity ­contributions, 371; for tourism, 297; types of, 150; of ­unaccompanied minors, 322; of Venezuelans, 109; of workers 282, 361, 364

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390 Index

Multilateral Agreement on Social Security, 12, 35, 64, 282, 283, 285 multiculturalism, 29, 87 nationality, access to, 10, 70, 115 nationals abroad, 325, 327, 331, 339, 340 national security, 49, 55, 65, 67, 94, 164, 297; agency of, 202; approach, 209; discussion on, 151; doctrine of, 30, 49, 163, 286, 356; emphasis in law, 163; issues of, 85; legislation focused on, 4; objectives, 354; paradigm, 87, 235, 244; perspective, 87; in Peru, 222; policy tool, 223, 225; Program for National Security, 210; protectionist vision in, 11; strengthening, 225; threat to, 71, 138, 236; vision of, 354 neoliberalism, 52, 84, 107, 108, 149, 281, 194, 302, 348, 349 non-discrimination clause: race, 31, 56, 57, 92, 117, 127, 129, 187, 196, 206, 222, 237, 256, 267, 269, 294, 359; religion, 31, 56, 57, 117, 127, 196, 205, 296, 237, 359 non-nationals, 11, 59–61, 63, 65, 78, 126, 127, 155, 156, 185, 175, 178, 179, 252, 268, 271 non-refoulment, 21, 57, 66, 67, 88, 118, 120, 121, 160, 197, 207, 352  Olivos Protocol, 302 Panama, 106, 154, 155, 157, 174, 177, 179, 260, 317, 331, 332

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Paraguay, 18, 19, 35, 49, 174, 264, 274, 281, 318, 320, 323, 328–30, 334, 335, 338, 339, 349, 360, 376 pecp permit, 121 pep residence, 126 permanent authorization, 27, 197 pi p permit, 126 Plan of Action on International Migration in South America (psdhm), 318–24, 326–30, 345, 336–7, 339 plurinationalism, 261, 277 political rights, 23, 59, 188, 228, 300, 329, 338, 352; vote, 21, 24, 59, 204, 232, 233, 329, 356 principle of reciprocity, 59, 113 proportionality, 66, 94, 96, 171 Protocol of Ouro Preto, 282 ptp permit, 225, 230, 231, 243 Quito Plan, 319 Quito Process, 332 Quito Protocol, 295 racism, 17, 68, 112, 237, 238, 266, 335, 372, 373, 372–4 refuge, 30, 50, 52, 53, 56, 57, 63, 68, 116, 119, 120, 150, 160, 163, 165, 182, 190, 198, 231, 238, 334, 335, 351, 353, 358, 365, 374 refugees: 1951 Convention Relating to the Status of Refugees, 6, 30, 49, 56, 70, 88, 117, 118, 120, 188, 189, 196, 228, 357; 1984 Cartagena Declaration on Refugees, 6, 21, 31, 56, 88, 117, 120, 188, 240, 365; Advisory Commission for the

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Index

Determination of Refugee Status (c o nare) in Colombia, 118; applications, 20, 53, 240; ­assistance, 32, 68; Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas, 366; in Brazil, 53; Brazilian Refugee Law No. 9, 474 of 1997, 67, 69; category of “refugee,” 21, 31, 56; claims, 30; climate refugees, 117; Commission for Refugees and Migrants in Argentina, 28; Committee on Refugee Eligibility (c e pa r e), 30; Convention Relating to the Status of Refugees, 20, 21, 69; crisis, 68; definition, 6, 31, 88, 117, 188, 189, 196, 212, 366; eligibility, 30; expulsion, 66, 67; flows, 4, 31, 365; General Coordination of the Mexican Commission for Refugee Assistance (com ar c g), 194; Global international organizations working with ­refugees, 313; integration, 6, 57, 67, 68, 69, 373; Jesuit Refugee Service, 188; in Latin America, 9; laws, 4, 5, 7, 9, 31, 57, 193, 231; Laws on Refugees and Children and Adolescents in Mexico, 193; legislation, 3–5, 8; Mexican Commission for Refugee Assistance (com ar), 188, 193; migration, 312; National Commission for Refugees (con are), 21, 31, 52; naturalization, 192; needs, 203; in Peru, 237–40; policy, 7, 9, 30; population, 30; protection, 6, 32,

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391

56, 120, 188, 189, 196, 201, 264, 366; Protocol Relating to the Status of Refugees, 30, 358; r4v (Inter-agency Coordination Platform for Refugees and Migrants), 110; Reference and Refugee Migrant and Refugee Centres (r ede c r a i), 68; Refugee and Complementary Protection Act of 2011 in Mexico, 189; Regional Response Plan for Refugees and Migrants (r mr p), 172; regulations, 21, 86, 88, 120; resettlement, 69; rights, 4, 6, 32, 159, 205, 206; status, 6, 30, 32, 52–4, 57, 118, 120, 160, 164, 167, 193, 194, 196, 200, 211, 252, 261, 309, 367; treaties, 85, 228; United Nations High Commissioner for Refugees (unhc r ), 21, 68, 148, 310, 316; Venezuelan refugees, 6, 110, 211 Regional Consultation Processes (rc ps), 309, 310, 312, 314, 315, 321 security: 31, 32, 117, 196, 197, 206, 370; Andean Committee of Social Security Authorities, 299; Andean Instrument of Social Security, 294, 298, 299; of the Andean Passport, 298; Andean Social Security System, 294, 371; approach, 70; Brazilian National Institute of Social Security (inss), 61; Chilean Ministry of the Interior and Public Security, 83, 85, 93, 95, 99, 372; company, 128;

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392 Index

concerns, 125; of the ­country, 32; dynamics, 70; emphasis on, 172; financial, 169; focus on, 71, 216, 371; forces, 208; interest, 202, 203; internal, 84–7, 226; issue, 173; laws, 70; legal, 125, 205; letter, 190; m ­ easure, 95, 211; mechanisms, 211; m ercos ur Multilateral Agreement on Social Security, 64; Mexican 2014–18 Program for National Security, 210; Mexican Ministry of Citizen Security and Protection, 215; model, 209; Multilateral Agreement on Social Security, 282; national, 4, 11, 30, 49, 52, 55, 65, 67, 71, 85, 87, 94, 138, 151, 163, 164, 202, 209, 222, 223, 225, 235, 236, 244, 286, 297, 354, 356; objectives, 282; policy, 209, 210, 211; ­promotion, 210; of the region, 210; right to, 60; social, 4, 12, 16, 22, 33, 35, 70, 131, 133, 167, 255, 283, 285, 294, 296, 299, 301, 371; state, 225; visions of, 162, 290 selectivity, 161, 163, 169, 172 smuggling, 88, 89, 164, 165, 322, 324, 327  social rights: education, 16, 21–3, 26, 32, 33, 60, 87, 125, 227, 229, 232, 241, 243, 291, 329, 338, 339, 372; health, 21–3, 26, 32, 60, 87, 112, 125, 133–6, 138, 186, 190, 197, 205, 212, 229, 230, 232, 243, 291, 294, 296, 297, 299, 329, 338, 339, 372; social assistance 60, 62, 133; social security, 4, 12, 16, 22, 33,

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35, 70, 131, 133, 167, 255, 283, 294, 299, 301, 371 South American Citizenship, 321, 324, 329, 340, 351 Southern Common Market. See mercosur sovereignty, 36, 59, 71, 77–9, 139, 162–4, 168, 169, 242, 253, 283, 289, 295, 297, 315 statelessness: 63, 115, 191, 193; Brazilian National Policy Project on Migration, Refuge and Statelessness, 68; Convention on the Reduction of Statelessness, 20, 228; conventions on, 165; dealing with, 70; determination of, 198; Eradication of Statelessness program, 366; law on, 21; legislation, 116; recognizing, 111, 116, 197, 198, 200; risks of, 10; situations of, 116 students, 18, 41, 83, 200, 201, 278, 290, 363, 371 subsidiary/complementary ­protection, 121, 122, 189, ­193–5, 197, 200, 201, 205, 206 Temporary Stay Permit Card (c pp), 231 tourists, 83, 124, 151, 200, 201, 187, 248, 290, 296–8, 363 Treaty of Asunción, 281 unaccompanied minors, 66, 153, 197, 210, 211, 322, 327, 345 unasur, 164, 312, 321, 345 United Nations Stabilization Mission in Haiti, 80, 82 United States, 11, 30, 161, 177, 179, 209, 210, 211, 213–15,

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Index

227, 284, 300, 309, 316, 322, 325, 331, 348–50 Uruguay, 18, 19, 45, 49, 64, 264, 281, 318, 319, 321, 323, ­328–30, 334–7, 340, 348, 349, 355, 360, 363 Venezuela, 6, 18, 53, 106, 107, 110, 111, 113, 114, 121, 140, 151, 155–7, 172–4, 177, 179, 184, 212, 227, 275, 278, 303, 307, 320, 330, 332, 334, 335, 345, 350, 360, 374; ­displacement, 8–12, 238, 326, 331; ­refugees or migrants, 6, 18, 82, 109, 110–12, 126, 139, 148, 151, 172, 173, 174, 211, 212, 225, 227, 230, 238, 356 Vienna Convention on Diplomatic Relations, 20 visa: administrative matters, 122; administrative system, 5, 81, 82, 140; agreements, 285; ­applications, 88, 123, 124, 140, 238; beneficiary, 124, 193; ­cancellations, 124, 125, 138, 168; categories, 109, 133, 163, 168, 169; consular, 296; courtesy visa, 122; democratic responsibility, 82; denials, 96, 124, 169; exemptions, 283; granting of, 52, 169; holder, 113, 123; ­humanitarian, 50, 53, 55, 57, 70, 197, 230, 231; Humanitarian

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393

Visa Program for Haitian citizens, 68; mercosur visa, 109, 151, 283, 363; M-type, 122, 123; new, 64; permanent ­residence, 115; p ­ lacements, 51; policies, 71; p ­ rocedures, 130, 301; progress, 284; protection, 169; R-type, 123; regulations, 122, 123; requirement, 287, 295, 301; ­resident, 83, 109, 115; revoke, 168, 169; special, 18, 68, 283; students, 290; ­temporary, 51, 169, 170; ­tourist, 124, 290, 297; transit, 124; types, 123, 169, 170; Union of South American Nations (unasur ) visa, 151; valid, 171; visa as dependents, 84; V (visitor)-type courtesy, 121; withdrawal of, 151; worker, 124 vulnerability: analysis, 267; ­assessment, 268; causes, 267, 268; characteristics, 266; ­concept, 253, 264, 265, 266, 267; conditions, 114, 264, 268, 270; forms, 89, 160; grounds, 268; immigrants, 260, 270; ­individual, 266; intensification, 267; legal, 92; meaning, 265, 267; migrants, 49, 78, 97; ­scenarios, 267; situations, 120, 193, 231, 232, 244, 265, 267, 268, 292, 293, 338; social, 259

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