Faculty of law blogs / UNIVERSITY OF OXFORD

The Relevance of Refuge in Relation to the Humanitarian Crisis in Northern Chile

Over the following weeks, we will be covering immigration and border control in South and Central America, with posts on Chile, Colombia, Venezuela, Haiti, Trinidad and Tobago, Curacao and Mexico, as well as the complex relationship between these countries. This new themed ongoing series has been organised by Ana AlivertiRimple Mehta and Andriani Fili, facilitated by Ritika Goyal, as part of their continuing work in expanding Border Criminologies in the Global South and building new networks and partnerships. While the issues highlighted in the posts affect millions of people, most discussions of border control focus upon realities in the Global North. This ongoing series attempts to fill this gap by presenting a view from the Global South. Do get in touch with us if you want to contribute a blog post in English or in Spanish.



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4 Minutes

Guest post by Martina Cociña-Cholaky and Roberto Dufraix-Tapia. Martina is a university professor and academic researcher in Chile. She received her PhD in Law and Political Science from the University of Barcelona, Spain, in 2019. Her research is focused on international migrationcriminologyracism and bordersRoberto is an assistant professor of Criminal Law at the University of Tarapacá in Iquique, Chile. He received a PhD in Law from the University of the Basque Country, Spain, and his research focuses on immigration enforcement issues such as deportations and human trafficking.

Photo: Daniel Quinteros Rojas

According to IOM, close to five and a half million people have emigrated from Venezuela as a consequence of the political crisis and socioeconomic instability, thus provoking “the largest external displacement crisis in the recent history of Latin America”. Among the receiving countries, Chile ranks third with 457,324 newcomers, preceded only by Peru (1,043,460) and Colombia (1,729,537).

At the end of January 2021, 1,800 migrants arrived in Colchane, in northern Chile, a small, 3,500-meter-high border village of 300 inhabitants, the vast majority of whom are Aymara natives. As expected, this massive arrival of Venezuelans concerned the inhabitants and the authorities, due not only to the incapacity of a small village to host such a high number of people amidst a health crisis, but also due to the meagre assistance they received  from the central government.

In this context, the mayor of Colchane stated that he was not willing to turn his town into a “refugee camp”. In so doing, he placed on the table one of the issues that until then had not taken centre stage in the government's migration policy agenda: refuge.

The lack of attention on this matter is striking for two reasons. First, Chile has signed several international treaties establishing clear legal obligations of asylum and international protection (Convention Relating to the Status of Refugees of 1951 and its Protocol of 1967), to which the government has not adhered. Moreover, the Chilean parliament passed Law 20,430 in 2010, which in line with the Cartagena Declaration of 1984 establishes a broad notion of refuge, granting international protection to those who "have fled their country of citizenship or habitual residence and whose life, safety       or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances that have seriously disturbed public order in that country" (Article 2.2 of the Law 20,430). In addition, this normative framework obliges the Chilean administration to respect and abide by certain fundamental principles, namely the principle of non-refoulement,               including the prohibition of rejection at the border (Article 4), the principle of non-punishment for irregular entry or residence (Article 6), and the principle of the most favorable treatment possible (Article 11).

However, the academic literature observes that what is happening in practice is  diametrically opposed to laws on paper. This was also noted in the Annual Human Rights Report of the Diego Portales University in 2014, which pointed out that arbitrary rejections at the border, the lack of interpreters, and the lack of substantiation of rejected asylum decisions, are just some of the obstacles that people seeking asylum in Chile have had to overcome.

These practices have also been denounced by migrant groups. Indeed, according to the president of the organization of Colombian refugees in Chile, “an arbitrary pre-admission procedure has been implemented in the Department of Foreigners that prevents  people who need protection from accessing this request”. This was also evidenced  by the final special investigation report no. 828 (2019) of the Comptroller General of the   Republic, which stated that many migrants cannot submit their asylum applications because PDI (police) officials carry out a pre-screening review, rejecting applications without legal basis and making it impossible to submit new applications in the future.

The second reason why the lack of attention to refuge is striking is the seemingly open borders policy that President Piñera had previously proclaimed for Venezuelan migrants. In fact, it was the President  himself who in 2018 declared before the UN that what was happening in Venezuela was  a real humanitarian crisis, in which “many, too many, are literally losing their lives for lack of food and lack of medicines”. At that time, the President expressed his solidarity with the Venezuelan people and called on them to “travel the roads towards a free,  prosperous and peaceful country”.

Nevertheless, instead of applying asylum regulations, the government opted to implement a crisis management model based on the criminalization of newcomers and mass deportations,  a measure prohibited by the American Convention on Human Rights and the Convention Relating to the Status of Refugees. The Chilean administration not only fails to comply with the obligation to carry out a case-by-case analysis of deportation orders, but also makes it difficult – if not prevent it at all- the exercise of effective judicial protection.

This de facto violation of asylum procedures has been reversed through constitutional remedies aimed at protecting the freedom and individual security of asylum seekers. However,      these efforts have been insufficient due to the unprecedented speed with which deportations have been carried out. Apparently, this marked efficiency in the enforcement of deportations is due to measures implemented by the government to manage the arrival of noncitizens through unauthorized ports of entry for public health purposes. In fact, the government established a system whereby, to access healthcare, asylum seekers had to self-report to the authorities as undocumented; otherwise they would not be allowed to any health services. This “self-report” requirement besides facilitating the registration of undocumented people, has allowed the government to speed up deportation practices.

It is evident that the measures adopted by the government in terms of asylum are consistent with the migration policy it has been championing during the last decades, focused on the securitization of borders and the criminalization of human mobility. Against this context, despite the thousands of Venezuelan migrants who have arrived      in the country, the Chilean administration has granted refugee status to only 17 Venezuelans. Yet, in 2019 16,933 people – 99% of whom, Venezuelan nationals – applied for asylum upon entering the country and more than 2,000 issued deportation orders targeted Venezuelan nationals.

The crisis generated by the pandemic should not put on hold asylum regulations. The Chilean administration, rather than criminalising and deporting, should provide effective legal protection to those who are fleeing one of the largest humanitarian crises in Latin America in recent decades. It is already known that border control policies do not hamper mobility flows, but make them more precarious. Therefore, the challenge for the successful implementation of asylum law provisions in the current political context remains.

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How to cite this blog post (Harvard style) 

Cociña-Cholaky, M. and Dufraix-Tapia, R. (2021). The Relevance of Refuge in Relation to the Humanitarian Crisis in Northern Chile. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/04/relevance-refuge [date]

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