Argentina’s Migration Law: Changes Challenging the Human Right to Migrate
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Guest post by Lila García, researcher at the National Council of Scientific and Technical Research (Consejo Nacional de Investigaciones Científicas y Técnicas – CONICET), Universidad Nacional de Mar del Plata, Buenos Aires, Argentina.
The beginning of 2017 abounded in legal developments in the Latin America migration field. Among them, Argentina issued National Decree No. 70/2017, to modify the migration law in force (National Law No. 25,871) in two main and complementary aspects: First, the government sought to restrict the rights of migrants while second it sought widen its ability to exclude foreign nationals by expanding the grounds for deportation, removal, and the termination of legal residency. To understand better this development, this blog post offers a brief overview of migration to Argentina, before turning to the development of the law and its current status.
Argentina has been traditionally characterized as an immigration country. At the turn of the 20th century, largely as a result of pro-migration programmes that sought to attract European citizens, migrants, mainly from European countries made up 30% of the total Argentinean population. Ever since, the proportion of foreign born population has been decreasing, according to the last census of 2010. Those who migrate to Argentina are also different from earlier cohorts. Currently, the population originating from bordering countries plus that of nearby Peru makes up almost 70% of the total foreign population in Argentina. During the 1990s, foreigners –particularly those hailing from Latin America- had to deal with serious incidents of xenophobia and police violence (portrayed in several reports issued by the Centro de Estudios Legales y Sociales), as well as little protection from the judiciary, as a consequence of obstacles for regularization and precarious immigration status.
Against this background, in 2004, Law 25,871, that was supported and advocated by civil society organisations, came into force. This law introduced two main changes to the existing legal framework. First, it recognised a (human) right to migrate, regardless of legal status. In doing so, it extended, in an explicit manner, the standards of equal treatment and non-discrimination, already guaranteed in constitutional provisions to all ‘inhabitants’, to all immigrants regardless of their legal status. In addition, the law improved the legal standards of protection for migrants set forth at an international level.
Second, the law conferred powers on courts to authorise, intervene or revise administrative decisions of the Immigration Board (DNM) concerning admissions, residency, detention and removal of foreign persons. And indeed, the DNM granted many exceptions that prevented people from being removed, particularly through enforcing family reunification. Finally, the law also called for the implementation of measures that promoted the legalisation of undocumented foreigners (Section 17) and guaranteed family reunification (Section 10).
Yet, the law did not open the borders. To the contrary, it established that the DNM may exclude people by denying admission or cancelling residency based on a number of reasons, ranging from criminal grounds to more generic provisions such as non-compliance ‘with the requirements set forth in the law’. In doing so, the law itself embodied a tension between conflicting provisions: the right to migrate and the State’s sovereign power to determine who to admit and who to expulse.
This tension was evident in many governmental acts and declarations: the relaunching of a resolution aimed to detect ‘fake tourists’ (which was enforced even against citizens from Mercosur countries, who do not need visa), the high number of entry denials at border locations, the increase of immigration raids (in hotels, Chinese supermarkets, sewing workshops, villas, etc.) and more importantly, the existence of administrative categories for granting entry and residence in the country (tourist, worker, student, etc.); thus, reserving the human right to migrate only for ‘worthy’ individuals.
These restrictive features of the law have been exacerbated by a new Decree passed in 2017 which tipped the scales in favour of the State over individuals on the move. Three amendments introduced by the decree are worth mentioning: (i) expansion of reasons for removal on criminal grounds; (ii) limits to the grant of waivers; (iii) creation of a parallel procedure to remove foreign persons.
Widening Criminal Grounds
Firstly, the government created a new ground for exclusion. It also expanded the grounds for denying admission of newcomers and for removing residents, based on criminal background.
The decree penalizes a person who fails to declare her criminal records. Despite the constitutional right against self-incrimination, the decree establishes that ‘the omission to declare the existence of criminal records or sentences or judicial or police requests’ can result in denying admission or stay (Section 29.a) or cancelling residency (Section 62.a).
The decree also eliminates the minimum threshold for deportation based on criminal grounds. Argentine Law in its ‘original wording’ required a minimum of three years of imprisonment before denying access to immigrants (Section 29.c) and five years before residency was cancelled (Section 62.b); in both cases, exceptions such as humanitarian factors, family ties, length of residency in the country, occupation, and personal and social conditions, etc. were considered.
The new regulation disregards these limitations to deportation, equating all crimes, irrespective of the significance of the crime and also, of the punishment imposed, the person’s ties to the country, family ties or length of residency in Argentina.
All those restrictive aspects of the new decree are reinforced by the introduction of a range of limitations to grant waivers. The use of waivers (for authorizing entry and residency, and for preventing removal) for humanitarian or family reasons was widely employed under Law 25.871 given that almost any noncompliance resulted in removal orders, mainly not executed. The new regulation increased the conditions for granting waivers. According to it, (i) waivers can only be granted to those with criminal convictions whose sentences do not exceed three years of imprisonment or whose crime has been committed with no intention; (ii) family cohabitation must be proved and moreover, (iii) some kind of economic or affective support to the family should be proved.
In addition, it bestowed the Executive Branch with exclusive prerogatives to grant waivers while denying the same prerogative to the Judicial Branch. The Executive retained this prerogatives following a number of judicial cases where the courts ruled in favor of migrant persons whose cases showed a misbalance between rights and powers of exclusion (for example in the ‘Barrios Rojas´ case).
Finally, the decree introduced a new procedure for removals. Originally, Law 25.871 provided for a number of avenues to challenge executive decisions, including the judicial authorization of detention of a foreign person for removal (section 70 Law 25,871), the review of an administrative removal order against a foreign national resident (Section 61 Law 25871) and the general revisions given by section 74. The new decree created a parallel, accelerated procedure which jeorpardises judicial review and legal guarantees. It reduces from thirty to three days the deadline for submitting a judicial claim against any final Immigration Board decision. Further, and more concerning, it establishes that ‘due notice’ of the decision shall not be provided by written advice but by a note in the file. The period given to the person to read her file is also three days and the judge has the same time period to decide on the claim. The introduction of this hasty procedure is justified by ‘the current duration of administrative and judicial proceedings’, which can take years. Yet, excessively long judicial proceedings in Argentina are due to bureaucratic factors and state failures. The State should bear its responsibility rather than transferring it to the weakest part. The introduction of these accelerated proceedings will not guarantee fairness. Indeed, experience shows that fast procedures such as “amparo” or “habeas corpus” tend to be rejected by the Judiciary on formal and even excessive ritualistic reasons, so “normal” (and longer) claims are finally preferred by plaintiffs.
A judicial claim from civil society
In challenging these measures, a number of civil society ogranisations brought a class action suit against Decree 70/2017. In their claim they challenged the legality of the decree on two main grounds. First, they questioned the constitutionality of the decree. Pursuant to Argentina’s Constitutional regime, a decree (issued by the Executive Branch) cannot modify or abrogate a law (enacted by the Federal Congress). In other words, Decree 70/2017 would not be valid to modify several aspects in the Migration Law and that´s why is hard to talk of a “new law”, when a federal law can be abrogated or modified only by another (and equally federal) law. Second, they criticized the content of the Decree, which violates basic human rights, as explained above.
Last April, the Judiciary ruled the claim as formally admissible [Federal Administrative Court #1 (Juzgado Contencioso Administrativo Federal nro. 1), Cause 3061/2017 “Centro de Estudios Legales y Sociales y otros vs. Estado Nacional-DNM s/ amparo ley 16.986”, decision dated on 04/05/2017], a decision particularly welcomed by civil society and academia given the reluctance of administrative courts to intervene in politics (Joppke & Marzal 2004). In other words, administrative courts (in Argentina, part of the Judicial Branch) tend to refuse to exercise control over decisions enacted by the Executive Branch.
Given the collective nature of the action, the judge invited potential interested third parties to put forward their position about the claim. All civil organizations working on migration topics were entitled to take part in the claim; many associations were recognized as interested parties.
In a context where countries throughout the region are tightening immigration controls, the new restrictions in Argentina are not an exception. In fact, the new regulation forms part of a wider global and regional trend to criminalize migrants. By arguing that is necessary to tighten migration controls to fight organized crime, the decree states and supports a link between crime and migration, which is perhaps the most worrisome idea brought by the new regulation.
Even so, civil organizations that advocated for Law 25,871 can still make a difference by challenging restrictive regulations and mobilizing public opinion through debates, open meetings, etc. Finally, against the lack of dialogue between government and social organizations that has characterized the period since December 2015 (e.g. the Forum DNM-Civil Society organizations stopped working), the Judiciary may become a new forum for civil society to participate.
Note: The author warmly thanks both Prof. Ana Aliverti and Andriani Filli for their detailed and helpful comments.
How to cite this blog post (Harvard style)
García, L. (2017) Argentina’s Migration Law: Changes Challenging the Human Right to Migrate. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/09/argentinas (Accessed [date])
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