Chile’s new immigration law: an adaptable solution or further crackdown?

By Tomás Pascual Ricke and Macarena Rodríguez Atero.

After more than two years of debate in Congress and revisions by the Constitutional Court a new immigration law has been adopted in Chile that will soon come into effect. The previous law, established in 1975, is an obsolete piece of legislation based on the logic of national security and the ‘foreign enemy’, developed during the military dictatorship and shaped by the politics of the Cold War. This old regulatory framework endowed the Chilean state with broad discretion over its treatment of migrants, who have been afforded minimum protection. It has been common for deportation procedures to fail to adhere to due process and for residence permits to be rejected or revoked without reasonable explanation.

Migrants arriving in Chile currently constitute 7.8% of the country’s total population, or 1,492,522 people. They come mainly from Peru, Haiti, Colombia and Bolivia, with an increasing number arriving from Venezuela in recent years (Migración en Chile). They work primarily in commerce (formal and informal), manufacturing and construction. Only a very small percentage (4%) are engaged in professional, scientific and technical activities (Migración en Chile).

The Chile-Bolivia border at Hito Cajón (image: Nico Kaiser on Flickr)

In any public policy on immigration, the strength of the migratory flows and the motivations of the migrants must be considered. No immigration law can function as a valve that opens or closes according to the demands of the moment. Migratory flows result from needs that are so complex and that seek to satisfy such basic needs that they often overwhelm the measures adopted to manage them.

In this context, the new regulatory framework on migration being adopted in Chile has some important points worth highlighting. First, the law enshrines a provision that requires the interpretation of the whole text in the light of international human rights law obligations. For example, it enshrines the principle of the child’s best interests for all decisions that involve them and it establishes a specific clause for the protection of the family through family reunification. In contrast to the current legislation, it also establishes the non-criminalization of irregular income. The new law incorporates a complementary protection statute, develops an expulsion procedure that involves judicial control (for migrants already residing in Chile), and creates a new institution that will take charge of migration, the National Migration Service.

Second, in terms of immigration policy, the law creates a Migration Policy Council made up of the Ministers of Interior and Public Security, Foreign Relations, Finance, Justice and Human Rights, Social Development and Family, Health and Labour, and Social Security. This council will review the national migration policy every four years and approve it together with the Republic’s President. It is a valuable tool that can deliver an effective response to the requirements of the migrant population and, above all, make it possible to adopt decisions that reflect the reality of the country and the region more widely. The Council will be able to propose quotas and types of residence permits that it deems appropriate to grant for a period of time or a specific geographical area.

However, other aspects of this new law are of grave concern. One of them is related to a radical change in how residence permits (visas) are granted so that people can work and settle in the country. Until now, residence permits have generally been obtained while the person applying is in the country, after entering as a tourist and looking for a job. This procedure, which is technically a change of immigration category, has been strongly criticized by the current authority and will not be allowed in the new regulations. Instead, all applications must be made from abroad (through the Chilean Consulate). In future, then, immigrants will have to receive the necessary documentation for residency before entering the country.

This measure does not take into account the situation facing most migrants arriving in Chile. The majority do not have a professional qualification or contacts that allow them to access a job offer from abroad, nor do they meet the criteria required for the types of visas they can apply for from the outside. This will generate a significant number of irregular migrants in the country, who will arrive in search of a job and who later will not be able to change their status, except in very particular cases.

Another aspect of concern is the summary deportation measure (immediate return): the new law will empower border officials (the Policía de Investigación de Chile) to detain anyone who is discovered entering through an unauthorized crossing and return them immediately to the border of the country they came from. These pushbacks are widely criticized in the field of international migration law due to the fact that they enable the police authorities to act at their own discretion and without accountability. In addition, they constitute an open violation of the rights of migrants by not allowing them to defend themselves, state the reasons that led them to this situation, nor request refuge or other international protection from the state.

The recent restrictive measures on the migrant population have led directly to a sustained increase in unauthorized entries into Chile. In the past three years, 60% of migration flows have been concentrated this way (Migración en Chile). But immigration authorities have indicated that the use of pushback measures was one reason behind the pressure to approve this law. 

The new law provides the current government with tools to define its immigration policy, allowing it to adapt or apply the law in different contexts. However, the measures should also be adopted with a long-term vision and not just dependent on different circumstances. The new immigration policy should not only take charge of border control but also the integration of immigrants into our cities and neighbourhoods. It should provide real alternatives for regular migration, promote an inclusive discourse to combat discrimination and criminalization, and respect the human rights of migrants in all circumstances.

Tomás Pascual Ricke is Professor of the Immigrant Legal Clinic at Alberto Hurtado University, Santiago de Chile, and Director of Human Rights Unit at Chilean Public Criminal Defender’s Office.

Macarena Rodríguez Atero is Director of the Legal Clinic at Alberto Hurtado University, Santiago de Chile, and President of the Board of Directors of the Jesuit Service for Migrants.

This post was commissioned by Ignacio Odriozola, MMB Alumni Ambassador. Ignacio is based in Buenos Aires and can be contacted via the email on this page to discuss contributions for the MMB Latin America blog.

A previous post on the MMB Latin America blog examined the new migration law in Chile at an earlier stage of its development. See ‘Inclusive language for exclusive migration policy outcomes‘ by Victoria Finn and Sebastián Umpierrez de Reguero, July 2020.

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