By Ignacio Odriozola.
On 7 December 2021, Argentina’s Supreme Court of Justice handed down its decision in the Qiuming Huang vs. National Directorate of Migration case (Huang case). The decision confirmed the deportation of an immigrant from China who had entered the country irregularly. It reached this conclusion by interpreting Argentina´s Migration Law (Law No. 25.871) in a strikingly restrictive manner. In doing so, it opened up the following debate: do court rulings just interpret laws, or are they also a cog in the wheel of a state’s migration policy?
Argentina’s migration law: pro-migrant legislation?
Law No. 25.871 was passed unanimously by the National Congress in December 2003. It signified a big move forwards from a century in which immigration had been seen as a matter of national security, whereby laws and decrees were aimed at excluding foreigners deemed undesirable (Acosta 2018). Law No. 25.871 thereby represented a paradigm shift: it was the first regulation at the international level to include in a legal text the human right to migrate (‘essential and inalienable right of the person’). Throughout the document its human rights perspective is evident: access to education, health or justice is guaranteed, regardless of immigration status, and the unity of the family is protected. Law No. 25.871 was welcomed by the international community and replicated by other countries in the region such as Bolivia, Brazil, Ecuador and Uruguay.
In addition, this 2003 law includes within its ambit a central aspect that fits Argentina’s status as a country with extensive territorial borders. Instead of ‘making people illegal’ (Dauvergne 2008), it promotes migratory regularisation as a rule. It indicates that the state will take all pertinent measures to this end (Article 17) and it incorporates a permanent regularisation mechanism in Article 61, which states: ‘When the irregularity of a foreigner’s stay in the country is confirmed […] the National Directorate of Migration must order them to regularise their situation within the peremptory period established for this purpose, under penalty of deportation.’
Still, one of the main criticisms of this law is its lack of clarity: many of its articles, written in an ambiguous or vague manner, have given rise to conflicting interpretations. Article 61 has been no exception: according to the National Directorate of Migration (immigration authority), it can only be implemented when an immigrant has been admitted to the country legally (for example, as a tourist, worker or family member) and the reason for their being admitted no longer stands. On the other hand, for academics, migrant advocates and civil society, this article should be applied to any situation of irregular migration, regardless of how the immigrant entered the country, so that they can apply for admission under the category of temporary or permanent resident.
The Huang case
The Huang case dealt with an immigrant from China who entered Argentina through an unauthorised crossing. Mr Huang had lived in the country for seven years; he worked, made social security contributions, had a clean criminal record and a permanent home. In accordance with Article 61, Mr Huang’s defence understood that the immigration authority was meant to ‘order’ him to regularise his migratory situation, but it had never done so. Instead, in keeping with its interpretation of Article 61, it decided to deport him because his unauthorised entry into the country prevented him from staying in Argentina. Following Mr Huang’s defence arguments, the Chamber of Appeals considered that – according to this same Article – he had the right to remain in the country.
The case eventually reached the Supreme Court, which had never previously analysed Article 61. The only precedent available, dating back many years, favoured Mr Huang. In the Cuesta Urrutia case (1944), this Court had said that irregular entry can be purged ‘by justification of upright behaviour in the country’ for a reasonable time and that the contrary would represent a ‘real and unjust expulsion’.
However, on 7 December 2021, the Supreme Court decided to deport Mr Huang. In its short seven-page judgement, it supported the immigration authority’s interpretation of Article 61: only those immigrants who entered the country through an authorised border crossing can regularise. At no point did it mention the human rights at stake or international standards on the matter.
A hidden migration policy?
Was the Supreme Court merely interpreting Article 61 when it made this ruling? The Court has analysed different articles of this legal text since it was passed in 2003 (see, for instance, Apaza León, Barrios Rojas, Ludueña Costa, among other cases). However, when looked at closely, different factors reveal why the Huang ruling may not have been just about legal interpretation.
The Supreme Court did not establish any exception to its rule, thereby giving the green light to the immigration authority for deporting – from now on – any immigrant in violation of entry controls. It does not matter how long the immigrant has resided in the country, whether he or she has family living there or any other social or economic ties: no person who enters Argentina by circumventing immigration controls can remain. The Supreme Court thus created a clear-cut legal border that overlaps with the already existing physical border.
Furthermore, in December 2021, after the Huang judgement, the Supreme Court ruled in an unprecedented way on 108 other identical individual deportation cases. Not one of them examined the particular situation of each of these 108 people but referred – without exception – to the arguments used in the Huang precedent as being analogous. Moreover, of the 108 cases, 97 were against people from China, giving rise to the suspicion that this was a collective (judicial) deportation, contrary to article 22.9 of the American Convention on Human Rights.
Thus, the Supreme Court demonstrated that migration policies, in addition to being established through directives from the executive or legislative branches, can also be shaped by judicial rulings. The Huang case and the 108 other rulings give rise to suspicion that the judiciary represents another cog in the wheel of population control and community membership, defining who can (or cannot) ‘belong’ to the community. They also reflect that deportation practices can be selective and deeply racialised when they are targeted at a specific national group.
Under the veil of interpreting the law, then, court rulings can have a fundamental – but often overlooked – role in shaping migration policy. This should be more widely acknowledged as it suggests that justice is not even safe from the courts that are supposed to guarantee it. In order to better understand migration policies, we must take more account of such court rulings.