Writing on a wall: ''Ningun Ser Humano Es Ilegal''.
 

Immigration Policy in Argentina: Between Theory and Practice

Victor Piché and Diego Morales
8 March, 2010

Last update: 17 May 2010.

Diego Morales is a lawyer at the Centro de Estudios Legales y Sociales (CELS) in Buenos Aires. The photography, taken in Buenos Aires’ subway, shows a graffiti saying that “No human being is illegal”.

In a previous editorial, we have described the new Argentine immigration policy as a model for a human rights approach [1]. This recent shift in immigration policy raises two questions: (1) what was the context surrounding the shift, and (2) what has happened in reality since the adoption of the new law?

To understand the new law, two aspects need to be highlighted. Firstly, in the period preceding the adoption of the law (1983-2004), coinciding with the return of democracy, there were intense public debates, mostly in Buenos Aires but also in other big cities, concerning immigration. These debates were initiated mostly by human rights organizations, among which CELS played a key part in criticizing the foundations of the old law based on the national security paradigm. Furthermore, the old law did not provide for precise criteria on which to base decisions on who could enter and who could not enter the country. This gave discretionary and arbitrary powers to civil servants responsible for border controls [2]. The second point has to do with immigration data. The result of this fuzzy legal context was a strong influx of irregular migrants mostly from neighboring countries (more or less 600000 between 1981-2004), accompanied by numerous detentions and expulsions without any legal provisions for such decisions. Also, expulsion decisions remained often without effect. Finally, irregular status often meant vulnerability in the labor market and limited access to social rights (health and education). The political solution adopted during this period was to put forward regularization programs. For NGOs concerned by the debates, this practice was far from guarantying migrants’ economic and social rights and their arguments finally prevailed.

What happened since the adoption of the new law? First of all, as mentioned above, many immigrants have taken advantage of the law to regularize their status. However, there remains one important problem inasmuch as the government has not yet adopted a set of regulations necessary for the application of the law, the result of which gives discretionary powers to civil servants in the “Direccion Nacional de Migraciones”, thus sometimes creating confusion and uncertainties. Another important problem with the application of the law, still not resolved, is the fact that access to economic and social rights imbedded in the federal law are under provincial jurisdictions. NGOs are thus pressing the federal government to adopt communication mechanisms to ensure full application of the law.

The first regulations project prepared by the government was severely criticized by human rights groups inasmuch as they more or less replicated the main approach used in the old law. Because of this criticism, the Argentine government decided to consult with other actors such as human rights organizations, United Nations Agencies and religious groups. These discussions produced a report submitted to the government in 2008, which suggests regulatory mechanisms more in line with human rights. This report insists even more on the obligations of the government with respect to human rights of migrants at the federal as well as at the provincial levels. These rights concern particularly access to the judicial system and the possibility for migrants to demand the regularization of their status. The regulation also delegates to the migration authorities the responsibility of defining criteria for entry at the borders. Now the challenge for the future of the monitoring and application of the regulations lies in the effective protection of human rights of migrants.

Over and above these internal pressures, there are also legal international pressures coming from the Inter-American Human Rights Commission, which is demanding that the Argentine government adopt the new regulations [3].

For the time being, certain aspects remain preoccupying. For instance, there is an overrepresentation of detainees coming from immigrant groups. Although there is no evidence of police profiling, the situation is considered unacceptable from the point of view of human rights organizations. Furthermore, given that most immigrants residing in the country have entered under the old regime, many of them still remain in precarious situations, in particular with respect to economic insertion [4] and access to social services.

In conclusion, three “revolutionary” aspects of the new Argentine law of immigration need to be stressed. Firstly, for the first time in the world, the law adopts the principle of migration as a human right. Even the UN Convention on the protection of migrants’ rights does not go so far. Secondly, the law subscribes to the free movement of people within the regional context of MERCOSUR. Finally, the law stipulates the obligation to submit expulsions to the legal system, giving migrants formal rights of representation [5].

It is still too soon to evaluate the effects of the new law on the improvement in living conditions of migrants. For this, one needs to see how the regulations will be applied and what will be the reactions of provincial governments. One thing is clear: the new legal context offers a tool conducive to the economic and social integration of immigrants. The new Argentine immigration law is certainly one of the most progressive frameworks with respect to human rights.

Footnotes

[1] Victor Piché, « Argentinean Immigration Policy Resolutely Geared to Human Rights», online (15-02-10). See also Creuza Munoz, « Giro radical de la politica migratoria argentina : Ciudadanos de la Patria Grande » Le Monde diplomatique « El Diplo », no 22, August 2009, pp. 18-19.

[2] President Cristina Fernandez signed the decree regulating the Migration Bill on May 3rd, 2010. For further information:

More information on the new regulations

[3] See supra, note 2

[4] See : Seminario Insercion sociolaboral de los inmigrantes en la Argentina, Direccion Nacional de Poblacion, Secretaria de Interior, Ministerio del Interior, febrero 2009.

[5] Diego Morales & Veronica Asurey, “La nueva ley de migraciones y las cuestiones de derecho penal y procesal penal. Una bienvenida sin sombrero”, Revista Nuevo Derecho Pena, 2004.

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