From National Security to Human Rights: Rethinking the Governance of Migration

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Tatiana Albuja, Spokesperson for the Migrant Action Movement and President of the National Council of Migration

Translated by Natalia Tranchino

Talking about migration governance has to do with three major dimensions: norms, public policies and institutionality. In turn, as a starting point it must assume that the right to human mobility implies that dignity has no boundaries.

Unfortunately, Chile has one of the oldest immigration laws in the American continent—dating back to 1975—and its national security focus keeps considering the immigrant as a threat.

In spite of the various reforms that have been made during the past few years in relation to the fulfillment of some rights, it becomes very difficult to consider Chile a cosmopolitan country as long as there is no change in the legal norms that govern immigrations. Indeed, Chile is still far from being a welcoming nation and fully integrated into the world, except for the free flow of capital, which has no restrictions.

If we speak of hospitality, this only takes shape when fortified by a legal framework whose articles establish the mechanisms that allow migratory regularity as well as the access to basic rights such as health, education, housing, citizenship, social welfare and retirement benefits, among others. This should be done without leaving aside the work of the local governments, which are of capital importance in the first contact with the immigrant communities. Therefore, it is necessary to build up a migratory management system that is centered on the quality of the immigrant as a subject of the law regardless of the contribution that migration makes to the host country, and under no circumstance conceiving it as a threat or a business.

Despite the fact that Chile ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families over 10 years ago, it still conditions the granting of residency to a dependent labor contract.  Immigrants who are self-employed, who do frontier work, temporary work, itinerant work and even work subject to a contract for the provision of services are denied the right to apply for a residency, which the convention guarantees.

On the other hand, the current visa system establishes four great categories subdivided into thirty. There exists several cases of immigrants that get to change their visa and identity card up to three times in the year. This excess of variants in visas generates slow and at times inflexible processes which promote irregularity (lack of documentation), as well as human trafficking. If to this we add the official discretion in the broad sense granted by the DL 1094 (royal decree-law), we realize that both the clerk and the border officer ultimately decide who enters the country according to their criterion of whom they regard as helpful or convenient to the State.

The abovementioned broad discretion gives room to abuse and, in some cases, even to  crime. When residency is subjected to a dependent contract (not even to one of provision of services, the one a vast majority of the Chilean population have), the immigrant has no choice but to work in the conditions that are offered to them, suffering on many occasions the abuse or violation of their most basic rights. In addition, there is the fact that pension funds can only be transferred or given back to professionals or technicians according to law 18,152 of the Ministry of Work and Social Security. Thus, it can be noticed that the Pension Fund Administrators (AFP) have a considerable reserve capital, since often it will not be returned to the migratory worker. Nobody is going to come back to Chile for a monthly pension of seven thousand pesos; consequently, the question whether this will be a new form of income tax for the immigrant community arises.

There are several fundamental criteria to incorporate in a new legal norm. To begin with, the dependent labor contract does not have to be the exclusive requirement to obtain a residence permit when the person comes to work. In addition, it is necessary to implement a multiple-use visa that grants faculties to perform one or more legal activities within the country. The visa that we propose would last for a year and be renewable for a second year; moreover, it could be processed in the host country or country of origin and would allow permanent residence beginning in the third year. Also, it is a high-priority to have a visa based on the international treaties Chile has subscribed with other countries, like that of the Mercosur, and to extend it for citizens from Ecuador, Peru and Colombia. Finally, it is relevant to formalize a humanitarian visa directed to those people who have been affected by environmental disasters and people with disabilities, as well as victims of family violence and human trafficking.

Another mechanism that promotes access to jobs requiring low qualification is the way in which foreign studies together with professional and technical degrees obtained abroad are recognized. In the first case, a detailed high school transcript is requested, and in the second the validation of studies to universities other than Universidad de Chile is prevented, being insufficient the graduation certificate legalized in the origin country. Moreover, children and adolescents do not have automatic access to a temporary visa at the time of enrolling in the educational institution, this possibility depending on the economic solvency of parents or tutors. Thus, a right is conditioned to an administrative act.

Although this may seem obvious, every administrative act must respect people’s rights. For example, the procedures for the approval of residence permits, prohibitions and expulsions must fulfill minimum guarantees of respect and nondiscrimination; however, nowadays this is not the case. In them the causes behind every decision must be made clear, including the possibility of appealing within a reasonable period. In the same way, it must be assured that every individual is explained the procedure and becomes familiar with it in a language they can understand. It cannot be allowed, either, that an individual is detained for more than 60 days to later be deported with nothing but the clothes on their backs. The latter involves an administrative misconduct which translates into not having the documentation in order; nevertheless, an administrative misconduct cannot be cause for deportation, let alone be confused with a crime.

The regulation of human mobility across borders must go beyond the standard policies of national security and focus its attention on people’s well-being. Also, it must consider new dimensions of migratory control, making it flexible to facilitate mobility and fortifying it to offer greater security against transnational delinquency.

Special attention must be paid to children’s rights. It is of paramount importance to guarantee that all children, from children born in Chile to children with parents in an irregular situation, can have automatic access to nationality. For this it is necessary to define the concept of the “foreign transient” by modifying the article 10 in the Constitution or, failing this, to clarify its 1960 decree No.5.142 regarding access to nationality. The ultimate goal is to allow children’s guardians the possibility of deciding on their nationality before reaching legal age, together with the authority to ratify their nationality when they reach that age. In this manner, the statelessness of children who are born in Chile from undocumented parents is avoided.

Finally, rights also mean participation. In this sense, law 20,500 has promoted mechanisms guaranteeing the participation of civil society and the immigrants themselves in  migration governance, especially through the National Council for Migration of the Civil Society. However, these spaces—although valuable—are not binding, but are consultative in nature. Articles 15 and 63 of the Migratory Law, in addition, directly threaten such participation. It follows that much still remains to be done in this respect.

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