By Luis Eduardo Thayer, Universidad Central de Chile Member of the National Council of Migration
Translated by Anthony Rauld
2015 and 2016 were marked by tragic images of hundreds of migrants and refugees dying at sea; they were incarcerated, assisted by humanitarian organizations, or brutally repressed by the police. According to the UN High Commission on Refugees, between 2014 and 2016 more than 10 thousand people died trying to cross the Mediterranean Sea towards Europe. This figure, illustrating what has been called the “migrant crisis”, does not reveal anything new, but it does reveal the intensification of a situation that has lasted at least three decades on the European border—2015 being the year when the limit of what was considered by European states to be normal border repression was breached. Faced with so many migrant deaths, the “migrant crisis” moved the limits of what was considered tolerable.
This radicalization of state policy has been carried out systematically since the 80’s. The crude reality of 2015 represents the apex of repression against migrants—applied, more or less, by the majority of developed countries that take in migrants. The differences, more than substantial divergences, reflect different strategies for managing the structural demands for migrant labor. What some have called the “paradox of needing unwanted immigrants” expresses the duality that governments face when they seek, on the one hand, to respond to the restrictive state policies their societies and electors demand, and on the other hand, to satisfy the structural demand for immigrants in order to maintain the profit margins of relevant sectors of the economy—like tourism, agriculture, construction, personnel services, among others.
Chile is not, and will not be, exempt from this tension. Just as any country whose immigration rates increase, Chile will face the tension inherent in the relationship between immigration and the state. The recent offensive on behalf of the right with respect to immigration policy is the first symptom of an incipient conflict in Chilean society; whether or not it is part of its electoral strategy, no doubt influenced by Trump’s victory in the US, or its alignment with the proposals put forward for decades by the European extreme right. You see, although it comes late, and in the worst way imaginable, a political space has indeed opened up, and the issue can finally be discussed. From within the academic world, civil society, and local government, we have been trying in vain to raise this issue to the level of national priority for a long time.
The issue, which was made visible by the extreme right, as part of their electoral paraphernalia, caught the center-left and the left quite empty-handed. One of the few policy suggestions on the matter was suggested by Ricardo Lagos, who wrote on his website a proposal that seeks to promote the rights of the immigrant population in accordance with their contributions to Chilean society. In other words, his position reflects a liberal stance that happens to coincide with the policy position promoted by the think tank Libertad y Desarrollo, which is linked to the right-wing UDI party. This instrumentalist view on immigration, which conditions the rights of these communities to the contributions they make to the host society, has a questionable basis and is undemocratic in its consequences, but at least it stimulates the debate.
There have been few proposals from the left, and from those of us who have been pushing for a human rights approach to undergird immigration policy. Some great work has been done by immigrant rights advocates, like MAM, or the National Coordinator of Immigrants, and other groups like the Jesuit Service for Migrants; the relative dearth of proposals has to do with the difficulty of turning a human rights approach to migration into specific criteria, principles, and norms that can serve as a basis for action. Without presuming to cover all of the possibilities within any discussion, but wanting to release the debate from the instrumentalism in which it finds itself, I lay out a few principles and criteria for the formulation of a new legislative proposal on immigration based on the recognition of universal human rights.
The first principle is unconditional access to all civic, social, and cultural rights for foreign citizens residing in Chile. This assumes that the recognition of such rights cannot be conditioned by the administrative situation of immigrants, and should be linked, through the legislation, to universal human rights. Both the legislation proposed by the Piñera administration and the draft proposal of the current administration declare that the law should encompass this approach, but neither of the two proposals includes these declarations in the text of the legislation.
The second principle aims to establish duration of residence in Chile as the only condition for access to political rights. It is necessary to reach a consensus as to the optimum amount of time foreign nationals will need to wait in order to be able to vote in general and local elections, and to hold public office. The proposal is that this period should not exceed three years of continual residence. Today, the Constitution gives foreign nationals the right to vote in all elections after five years of “neighborhood residency.” For the Servel service, “neighborhood residency” is a five-year period of definitive residency, which implies that immigrants can vote in Chile, in the best of cases, only after seven years of effective residency.
Thirdly, there must be a guarantee of homogeneity with respect to the requirements needed by the different migrant groups to access social rights and benefits. The state cannot promote inequality between different nationalities by allowing principles like “reciprocity”, or other discretional criteria, to affect specific groups. A law that is based on human rights cannot institutionalize discrimination against specific nationalities.
In fourth place, it is important to simplify migrant categories. The multiplication of visa categories increases, not only the probability of being stuck in irregular or transitory status, but also the number of administrative procedures, the cost of those procedures, and the difficulty of accessing jobs, since employers prefer immigrants with definitive residency permits over those who are involved in transitory administrative processes. Migrants should be able to enter the country with a “multi-functional visa” which would allow them to engage in any legal activity, paid or unpaid (study, get work, get temporary work, etc.), for a one-year period, renewable for an additional year, after which they could apply for definitive residency.
In fifth place, the law should guarantee the possibility of changing migrant categories, conditioned only by temporality. A visa allowing entrance, but restricting the ability to change category, encourages irregularity. The research has shown this since the 70’s. The paradigm case was the German policy of the 50’s and 60’s, intended to attract temporary workers. They would arrive with work permits for two or five years, at which time they “had to” return to their country of origin without the option to apply for a definitive residency in Germany. What happened? The majority, who were mostly from Turkey, stayed in Germany and suffered extreme precariousness for many years.
In sixth place, it is necessary to institutionalize the participation of civil society, including representatives of the immigrant communities themselves, into a national system that determines immigration policy—not only as a democratic imperative, but also for political sustainability. When civic society participates in defining public policy, it becomes co-responsible for its implementation. This level of participation can be channeled through the National Counsel of Migration, which is currently active, or any other institution that can carry out this function.
In seventh place, it is necessary to guarantee the autonomy of the Chilean State with regards to migration policy. The law cannot contemplate the a priori acceptance of any kind of legal conviction delivered by another state as a prerequisite for entrance into the country. By recognizing the criteria of other states, the law could infringe upon the human rights that the Chilean State has decided to protect.
An eighth point involves the suspension of any order to deport foreign nationals with definitive residency in Chile—as a substitute recourse to those granted to Chilean citizens by the judicial system. The only circumstance that justifies repatriation for a convicted immigrant is the infringement of the rights of his/her children if they are to be found in the country of origin. No other argument justifies the expulsion of a resident immigrant.
In ninth place, all policy questions that have a human rights focus are by definition consistent over time. The proposal for pre-legislation elaborated by the Nueva Mayoría coalition consecrates the possibility of modifying policies regarding access to national territory and rights in relation to the changing economic needs of the country or the government’s periodic evaluations. A consistent immigrant policy can only be modified by legal reform in Congress, and not by the relevant authority in the executive. This avoids conditioning migrant policies to the ups and downs of the economy or to the political whims of the day.
Finally, it is important to reduce the role of the legislation’s statutes in determining access to rights or defining the necessary conditions to change the category of residency. The regulatory statute should limit its function to the creation of the institutional conditions necessary for the legislation to work efficiently, and should not provide opportunities for discretionality or arbitrariness—in what is ultimately an issue at the heart of democracy.
When it comes to immigration policy, more than in any other realm of state action, the outlines and the core substance of democracy are revealed, since immigrants test a nation’s resolve to provide all of its inhabitants with equal access to rights. Providing for the inclusion of immigrants on equal terms implies the strengthening of democracy, whereas exclusion and restriction imply only that democracy is made impossible.