By Luisa Feline Freier and Soledad Castillo Jara.
On 8th February 2021, the Colombian government announced that it would grant Temporary Protective Status (TPS) for ten years to nearly one million Venezuelan citizens. This measure seeks to provide regular status to Venezuelan migrants and refugees and, at the same time, collect relevant data for the creation of a unified registry of the Venezuelan population residing in Colombia. In this blog post, we examine the advantages and shortcomings of this exceptional TPS, as well as its domestic and international political implications. We argue that other Latin American countries could learn from the pragmatic approach taken by the Colombian government.
As for its potential beneficiaries, the TPS is available to all Venezuelans living in Colombia with regular status, to those who were in an irregular situation on 31st January 2021, and to those who will enter Colombia through an authorized point of entry within the first two years of the TPS coming into force. Venezuelan asylum seekers are also encouraged to apply. At the end of 2020 there were approximately 1.7 million Venezuelan nationals living in Colombia, including more than 950,000 with irregular status. Despite the pandemic, close to 2,000 people cross the Colombian-Venezuelan border each day. In the context of ongoing Venezuelan humanitarian displacement – more than 5.5 million in early 2021 – the TPS highlights Colombia’s surprisingly pragmatic approach to the very real challenge Venezuelan immigration poses to neighbouring countries.
Internationally, the decision was praised as historic, and the United Nations High Commissioner for Refugees even considered it the ‘most important humanitarian gesture in the region for decades’. Among its many advantages, the TPS offers the prospect of improving the socio-economic integration of Venezuelan migrants and refugees, on the one hand, and collecting important information on the population living in its territory for the Colombian government, on the other. TPS status will improve access to public services, including healthcare and the COVID-19 vaccine. The regularization programme will also remedy the confusion caused by the wide variety of previous temporary permits.
Critics, however, worry that Colombia is applying a migratory regularization mechanism to a population that should be protected as refugees according to the definition of refugee in the Cartagena Declaration, which Colombia and 14 other countries across the region have incorporated into their national legislation. This regional definition broadens the scope of the 1951 Refugee Convention definition by including as refugees people who flee from ‘generalised violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order’. According to the Centre for Human Rights of the Andrés Bello University (Caracas), the proposed legal text of the TPS does not reflect the international protection approach that triggered its international praise. Instead, the proposed decree is framed in terms of a migratory regularization, without sufficiently recognizing the fact that the cause of on-going Venezuelan displacement is a severe socio-economic, political and humanitarian crisis.
For instance, the proposed legislation is based on the Global Compact for Migration and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, and does not consider other relevant instruments such as the Cartagena Declaration on Refugees, the Convention Relating to the Status of Refugees, the Inter American Convention on Human Rights, the Convention on the Reduction of Statelessness, and the Global Compact on Refugees. Neither does it explicitly include protection provisions, such as the prohibition of rejection at borders, the right to non-refoulment, the non-penalization of irregular entry or stay, and the special protection of unaccompanied children and teenagers.
At the same time, criticism voiced by the broader public sees the programme as going too far. Some fear the overburdening of public services. Others see the TPS as a path to Colombian citizenship and fear that it could be instrumentalized electorally. The Colombian government has discredited these fears by reassuring that the beneficiaries of the TPS will pay taxes and contribute to the social security system. Nor will the TPS offer Venezuelans immediate access to Colombian citizenship and voting rights. According to the Constitution, only Colombian nationals have the right to vote in presidential elections. However, foreigners who hold a resident visa and have lived in the country for at least five years can vote in local elections according to Law 1070 of 2006. As expressed by a representative of Migración Colombia in a recent event convened by the Egmont Institute, the TPS is ‘a path, not a final destination’. It offers an opportunity for Venezuelan citizens to regularize their status and eventually upgrade to the ordinary visa regime.
While the government considers the TPS to be ‘humanitarian and apolitical’, it is based on a number of political considerations. First, it can be understood as an act of solidarity and reciprocity, given that thousands of Colombians migrated to Venezuela in the past, fleeing the country’s internal armed conflict. It also expresses Colombia’s ongoing commitment to the defence of democracy and human rights in the region. And, above all, it is a pragmatic decision. Colombia is the main destination for Venezuelan migrants and refugees, the majority of whom are of working age and can contribute positively to Colombia’s fiscal income. At the same time, the border area between Colombia and Venezuela has not been under complete state control for a long time. So, even if Colombia intended to prevent the entry of Venezuelans, it would not have the capacity to do so.
Thus, the TPS represents a humanitarian, but also the deeply realistic decision to manage Venezuelan displacement with a view to its potential to contribute to Colombia’s development. In the international arena, it boosts Colombian soft power and further provides the government with more, and closer, contacts with international organizations and donors, which is of vital importance in the context of the COVID-19 pandemic and the investments that will be necessary for post-pandemic economic recovery. Due to its welcoming stance, in past years Colombia has benefited more from international cooperation than its neighbours, both in terms of economic resources and skills transfer.
In sum, the TPS is an important step forward in terms of Venezuelans’ regularization and integration. Despite not living up to the standards of international refugee protection, the TPS reflects a spirit of openness and, above all, pragmatism, from which other Latin American countries have much to learn.