Situation of Haitians and Venezuelans, as well as New Migration Law Also Discussed

9 April 2021

The Committee on the Protection of the Rights of All Migrant Workers and Members of their Families this afternoon concluded its consideration of the second periodic report of Chile on its implementation of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families. 

Committee Experts noted that the new migration law would put into effect a complete paradigm shift, and welcomed positive changes it would enact, in line with the Convention, notably article 69.  They addressed the Colchane Plan and the two related sets of expulsions that had taken place in Iquique in February, involving hundreds of individuals, including Venezuelans.  Experts stressed that the Convention forbade collective expulsions; family and other aspects must be considered on an individual basis.  Could the delegation provide details on how these principles had been upheld?  Appeals should suspend expulsion proceedings, which had reportedly not been the case for these expulsions. 

They also inquired about, among other issues, the way in which migrants were protected from the COVID-19 pandemic; visas provided to Venezuelan nationals; discrimination against migrants of African-descant, including Haitians; and the situation of migrant children.

Juan Francisco Galli, Under-Secretary of the Interior of the Ministry of Interior and Public Security of Chile, said any person entering Chile, regardless of their migratory status, had a right to receive healthcare, including access to COVID-19 tests and care.  Regarding the expulsions that took place in February, he noted that in that month, 1,800 persons had entered the country illegally; only a fraction had been expelled.  The objective of the expulsions was to ensure compliance with migration regulations, and they hardly amounted to collective expulsions, as not all individuals who had entered illegally had been expelled.  Regarding the right to family life and the rights of children, Mr. Galli assured that no child, regardless of their migration status, had been expelled as a result of their illegal entry at the northern border.  No family members of children had been expelled either.  On the non-refoulement principle, nobody had raised concerns about potential threats the concerned migrants could face if expelled. 

On irregular arrivals, while there had been cases where criminal proceedings had had to be pursued, something which civil society had rallied against, the Government generally sought to apply the non-criminalisation principle.  These illegal arrivals implied risks related not only to the characteristics of the terrain in the Colchane region but also the possibility of falling prey to trickery, or bribery schemes.  The Government’s approach sought to minimise such exposure to danger.  The delegation added that Chile provided approximately 350,000 to 450,000 visas yearly, including about 200,000 work-related visas.  It provided Venezuelans with special visas giving them the right to family reunification or to stay in Chile for one year, among other measures.  About 455,000 migrants of Venezuelan origin lived in Chile, mainly in the region of Valparaiso. 

In his concluding remarks, Alvaro Botero Navarro, Committee Member and Country Co-Rapporteur for Chile, stressed that individual decisions required individual analysis.  Collective expulsions were punitive in nature.  It was still not clear how the rights of people who had been expelled in Colchane had been protected

Edgar Corso De Sosa, Committee Member and Country Co-Rapporteur for Chile, asked what kind of analysis would be performed in providing migrants with channels of regularisation.  He thanked the delegation and all those present, who had been learning from each other.  He wished the best to Chile in the context of the adoption of its new Constitution.

Mr. Galli, assuring that additional information would be provided in writing, said the new law would clarify Chile’s migration policies, and this greater clarity would foster dialogues like this one. 

Can Ünver, Committee Chairperson, thanked the delegation for the constructive dialogue, and for agreeing to take part in an exchange in a virtual format, which had its drawbacks.

This was the Committee’s first online review of the report of a State party.

The delegation of Chile consisted of representatives of the Ministry of the Interior and Public Security, the National Congress, the Ministry of Foreign Relations, the Investigative Police of Chile, the Supreme Court, the Prosecution authorities, the Ministry of Justice and Human Rights, the Ministry of Women and Gender Equality, the Ministry of Labour and Social Services, the Ministry of Housing and Urban Planning, and the Permanent Mission of Chile in Geneva. 

All documents related to the Committee’s dialogue with Chile can be found here.  The webcast of the dialogue can be found here.  All meetings coverage releases on the work of the Committee can be found here.

The Committee will next meet in public on Wednesday, 14 April, at 4 p.m. to meet with States and other stakeholders.

Report

The Committee has before it the second periodic report of Chile (CMW/C/CHL/2). 

Presentation of the Report

JUAN FRANCISCO GALLI, Under-Secretary of the Interior of the Ministry of Interior and Public Security of Chile, noting that the delegation was comprised of representatives of the three branches of government, said it was a great honour to lead this delegation and reiterated Chile’s commitment to participate constructively in this dialogue. 

Since 2015, migration had risen to the top of the public agenda given the magnitude of the demographic change that Chile was experiencing.  In the last five years, one million foreigners had arrived in Chile, 90 per cent of them with the aim of settling there, despite declaring tourism as the motive of their entry.  In March 2018, President Sebastián Piñera had taken office for the second time, focusing on the urgent need to manage the significant migratory changes that Chile was experiencing.  At the end of April of that year, President Piñera designed an extraordinary regularisation plan which benefited more than 200,000 people.  The plan was structured around the idea of ​​"putting the house in order", meaning promoting responsible, orderly, safe and regular migration.  The modernisation process of the Ministry of Immigration and Migration had managed to transform the request, evaluation and delivery of documents into a dignified, efficient process, with greater transparency and follow-up.  People no longer had to queue for hours and wait for months to start processing their documents.  Now, the Government faced the challenge of deepening migration management, involving all ministries and undersecretaries that could contribute to the process of integrating the migrant population. 
    
Reaffirming Chile’s freedom to define a policy that guaranteed clear rules for entry and stay, Mr. Galli said the new immigration law, which would take effect in the coming weeks after having been discussed in Congress for eight years, would address issues such as the insufficient number of migratory categories, the difficulty to carry out expulsions,  and the challenges to the recognition of professional credentials.  The new law would generate important changes, notably: the creation of new institutions, the National Migration Service and its regional directorates; the obligation to propose a comprehensive Migratory Public Policy; and a requirement for migrants to be honest about the reasons why they came to Chile, considering that there was a flexible catalogue of visas, which would allow adequate control and regularisation of migration, as well as planning with local and regional governments to foster the integration of migrants.  The new law also envisaged the non-criminalisation of clandestine entry, to facilitate administrative expulsions and to disincentivise the use of unauthorised crossing points.  The new migration law also contained a series of alternatives for migratory regularisation for foreigners who were affected by serious vulnerabilities, such as victims of human trafficking, migrant smuggling, or domestic violence.  Furthermore, this month, Chile would begin a new extraordinary regularisation process, the second in three years, aiming to provide a humanitarian solution without sanctions for those who had entered the country clandestinely. 

Turning to expulsions, Mr. Galli explained that prior to ordering them, authorities must take into consideration the seriousness of the offense committed; the criminal record of the person; the period of regular residence in the country; family ties; and the best interests of the child, amongst other criteria.  An affected person or any person acting on their behalf could file an appeal before the courts.  Article 21 of the new migration law established the right of migrants to due process.  On the principle of non-refoulement, no foreigner may be expelled or returned to a country where their right to life, physical integrity or personal freedom was at risk of being violated because of their race or ethnicity, nationality, religion or belief, social condition, ideology or political opinion, sexual orientation or gender identity.   On inclusion issues, territorial work was fundamental, and the Ministry of Immigration and Migration had signed a charter to that end with 61 municipalities.

Efforts made by the State to assist migrants in the face of the COVID-19 pandemic should be underscored.  Procedures had been digitised, generating instant responses to requests related to permanent residency, which went hand in hand with the decree of the Ministry of Justice and Human Rights that extended the validity of identity papers.  Measures had been taken to make it unnecessary to go to offices to obtain immigration benefits, and deadlines to correct and obtain certain documents, such as the criminal record in the country of origin, had been made more flexible.  All foreigners, except tourists, would be able to get a COVID-19 vaccine.  Mr. Galli added that he had no doubt that Chile was a safer and more orderly country for migrants, and that the new tools, mainly the new law and institutions, would greatly contribute to improve the quality of life of migrants. 

JOSÉ MIGUEL INSULZA, Chilean Senator, said this was the first public stock-taking exercise conducted since the migratory situation had completely changed in Chile.  There used to be very few migrants, but now migrants made up 8 per cent of the population and this had generated a debate which led to new regulations.  The Constitutional Court had very recently approved the new laws, which could be summarised as follows: it was harder to get in, but once inside the country, migrants benefitted from greater protection.  Regularisation led to better protection and put migrant workers on an equal footing with Chileans, providing them with the same social benefits, same rights to housing and education, as well as the right to family reunification, among others.

Questions by the Committee Experts

ALVARO BOTERO NAVARRO, Committee Member and Country Co-Rapporteur for Chile, welcomed the delegation and commended it for including representatives from various authorities in the country, including the judiciary.

He noted that the new law would put into effect a complete paradigm shift, and welcomed the fact that the best interest of the child was enshrined in the law and that all migrants benefitted from the same rights regardless of their migratory status, amongst other positive developments that were in line with the Convention, notably article 69.  He also thanked the State party for involving the Committee in the process that led to the drafting of the new law.

Stressing that it was important to not only consider the new institutional setup, but also the way in which laws were applied in practice, the Rapporteur turned to the Colchane Plan and the two related sets of expulsions that had taken place in Iquique in February, involving 828 persons expelled by air and another 50 individuals expelled by land.  The individuals had been expelled to Venezuela, and some of them had been Colombian nationals.  He recalled that appeals should suspend expulsion proceedings, which had reportedly not been the case for these expulsions.  What had been the timeline for these expulsions?  How had they been communicated to the concerned individuals?  What measures had the State party adopted to ensure that sufficient guarantees had been provided to concerned persons, and that individualised assessments had been carried out, the Rapporteur asked, seeking assurances that these had not been collective expulsions.

On the right to family life, Mr. Botero Navarro inquired about protection measures in place to protect children and the best interest of the child. 

EDGAR CORSO DE SOSA, Committee Member and Country Co-Rapporteur for Chile, thanked the delegation for its participation in the dialogue.  He underlined the positive efforts of the Government, such as the non-criminalisation of clandestine entry in Chile.

Did the persons involved in the Iquique expulsions have access to adequate health protection, he asked?  Had their specific needs been taken into account?  The Committee was concerned about the effect of the COVID-19 pandemic on human rights. 

Article 22 (1) of the Convention forbade collective expulsions; family and other aspects must be considered on an individual basis, the Rapporteur stressed.  Could the delegation provide details on how these principles had been upheld?

Based on the current law on aliens, which dated from 1975, irregular entry was considered an offence.  Given that the new law would not criminalise unlawful entry, would complaints previously brought against people who had entered irregularly be dropped?  If so, could the delegation provide information on the related timeline?  

The Rapporteur inquired about the way in which migrants were protected from the COVID-19 pandemic.  In particular, he asked about safeguards to ensure they could access healthcare services, notably by going to medical centres without fearing detention or deportation.

Had any awareness-raising campaign been organised on discriminatory speech?  Such speech could foster negative opinions and behaviour towards migrants.  It was important that non-criminalisation and non-discrimination went hand in hand with adequate speech.

Other Committee Experts asked how the National Human Rights Plan addressed issues related to migration.  They requested information on measures protecting people passing through Chile to go work elsewhere; whether there would be a new plan on human trafficking; guarantees that all voluntary returns were indeed freely consented to; measures to uphold the non-refoulement principle, such as training of border authorities; services provided to Chileans working abroad; regional initiatives to manage migration and protect migrants’ rights; and the different kinds of visas available in Chile.

Some Experts commended the Chilean Government’s efforts to integrate migrants in society. 

Responses by the Delegation

JUAN FRANCISCO GALLI, Under-Secretary of the Interior of the Ministry of Interior and Public Security of Chile, said that before the execution of the Colchane Plan, Chile had entered an agreement with Peru to limit illegal entries in that region.  Unlike neighbouring countries, Chile had not closed its borders after the COVID-19 outbreak.  This decision was amongst factors that had caused an increase in illegal entries at the Peruvian borders.  Then, reacting to the authorities’ response to the uptick in illegal entries in that region, people had started entering via Bolivia, in the Colchane region.  Borders in the Colchane region being 3,000 feet above sea level, crossings were risky, and people had died.  Any person entering Chile, regardless of their migratory status, had a right to receive healthcare, including access to COVID-19 tests and care, he stressed.

As well as promulgating the new laws as soon as possible, Chile had taken steps to prevent migrants from being defrauded by traffickers and smugglers or from running safety risks while entering the country.  It had therefore made an appeal for regular entry in the country.  In that context, as part of the Colchane Plan, people had also been expelled as an alternative to serving prison sentences. 

Regarding the expulsions that took place in February, Mr. Galli noted that in that month, 1,800 persons had entered the country illegally; only a fraction had been expelled.  The objective of the expulsions was to ensure compliance with migration regulations, and they hardly amounted to collective expulsions, as not all individuals who had entered illegally had been expelled.

On judicial orders suspending the expulsion proceedings, 80 per cent of appeals had been rejected.  The decisions to suspend expulsions had been handed down after the expulsions had been carried out.

Regarding the right to family life and the rights of children, Mr. Galli assured that no child, regardless of their migration status, had been expelled as a result of their illegal entry at the northern border.  No family members of children had been expelled either. 

On the non-refoulement principle, nobody had raised concerns about potential threats the concerned migrants could face if expelled.  About non-criminalisation of irregular entry, he added that, currently, there was a 15-day period between the declaration by migrants on their illegal entry and their expulsion.  These declarations triggered criminal proceedings as well as an administrative expulsion process.  In the meanwhile, migrants were housed in healthcare facilities where they had access to care.

The delegation said that the enactment of the new law on migration would address the situation of stateless people, with the aim of fostering their inclusion. 

On Chile’s international relations, delegates explained that efforts had been made to develop Chile’s consular policy in order to provide assistance to Chileans living abroad, notably those in vulnerable situations.  In the context of the Universal Periodic Review, Chile had recommended the ratification of the Convention to 22 countries.  Along with 13 other countries, Chile participated in the Quito process, a technical body created to bring a regional response to the crisis in Venezuela, including its effects on migration.  In that regard, the Government had created a “Democratic Responsibility Visa” for Venezuelans, which allowed them to stay in the country for a year, renewable for another year.

The delegation provided information on the role of the judicial branch.  While this branch of government did not have disaggregated information on all claims related to naturalisation and expulsion cases brought before courts, it had conducted an analysis of the jurisprudence which notably dealt with appeals and could be accessed online.  There had been about 25 rulings handed down by the Supreme Court, a majority of which had resulted in the granting of constitutional protection to migrants, including to migrants who had children, whose expulsion had not been carried out as a result of the Court’s decision.  Family connections were not only considered through the prism of national legislation, but also through that of international conventions that protected the rights of children.  This had led the Supreme Court to overrule lower court decisions that had failed to provide protection which migrants were entitled to because of their family situation.  The migratory authorities had followed the Supreme Court’s rulings by abiding by its jurisprudence, the delegation assured.

The judicial branch had established an index to assess the level of confidence in the justice system and collect information on its users, 4.3 per cent of whom were foreigners.  It had also deployed efforts to ensure that simple language was used, and that it was adapted to the social situation of users.  An online system had been established to provide information and assistance to people who did not speak Spanish.

The Prosecution Office, also known as the Public Ministry, was independent, the delegation said.  The prosecution policies of the Public Ministry had been mainly based on non-criminalisation since December 2020.  On people smuggling and human trafficking, the same general approach was used: cases were investigated seeking to provide a recourse to victims, in a manner that sought to avoid re-victimisation.  The Criminal Code set forth an obligation for prosecutors to support victims, which notably implied ensuring non-discrimination.  Means of returning them safely to their countries of origin were sought in a manner that considered specific circumstances.
JUAN FRANCISCO GALLI, Under-Secretary of the Interior of the Ministry of Interior and Public Security of Chile, said that articles 68 and 69 of the current law criminalised illegal arrivals, and provided for a punishment with a deprivation of liberty for three to five years.  However, the prosecution authorities implemented the non-criminalisation principle.  Administrative proceedings were used to address the crime of illegal arrivals: those who had arrived illegally therefore incurred administrative penalties.  While there had been cases where criminal proceedings had had to be pursued, something which civil society had rallied against, the Government generally sought to apply the non-criminalisation principle.  Most expulsions resulted from an illegal arrival in the country, Mr. Galli added.  These illegal arrivals implied risks related not only to the characteristics of the terrain but also the possibility of falling prey to trickery, or bribery schemes.  The Government’s approach sought to minimise such exposure to danger.

Turning to trafficking in persons, the delegation said the 2019-2022 action plan against trafficking focused on prevention and raising awareness among officials on the detection of victims.  Since 2011, 47 trafficking cases had been brought to court, with some 285 victims; 21 convictions were handed down.  Most of the cases concerned sexual and labour exploitation. 

Chile provided approximately 350,000 to 450,000 visas yearly, including about 200,000 work-related visas.  The majority of migrants were moving towards a permanent residency, which granted migrants after five years the right to vote, without becoming citizens.  Chile provided Venezuelans with special visas giving them the right to family reunification or to stay in Chile for one year, among other measures.  About 455,000 migrants of Venezuelan origin lived in Chile, mainly in the region of Valparaiso. 

Questions by Committee Experts

A Committee Expert asked about integration schemes and the performance of administrative functions related to migration outside of the Santiago area.  Could the delegation provide more information on the agreement between the Government and municipalities?  

ALVARO BOTERO NAVARRO, Committee Member and Country Co-Rapporteur for Chile, requested additional information on guarantees of due process in the context of the implementation of the Colchane Plan.  Since the timeline for the issuance and execution of expulsion orders was tight, how were procedural guarantees upheld?  

He also asked how the State provided remedy to individuals who had been deported before a ruling suspending or cancelling an expulsion order had been handed down.  In light of the militarisation of the borders, the Committee would appreciate information on measures ensuring access to asylum procedures and the identification of needs for international protection.  Specifically, details on the role played by the military would be useful.

EDGAR CORSO DE SOSA, Committee Member and Country Co-Rapporteur for Chile, said the Committee needed more information on the status of children born to migrants who had entered irregularly or to transient visitors.  Could measures affecting them be enshrined in law to ensure that protection was provided to these migrant children, particularly while upholding the best interest of the child. 

The Rapporteur inquired about administrative migratory detention, notably access to medical care and interpretation and translation services in that context.  Noting that there was a “pre-screening” or “pre-admissibility assessment” for asylum requests, he asked the delegation to comment on this practice as it had been deemed to be illegal.  Could more information be provided on ID cards for foreign workers?  Would the State party consider ratifying International Labour Organization Convention 143 without any reservations?

Committee Experts asked if Chile intended to sign the United Nations Global Compact for Migration, and inquired about discrimination against migrants who were Afro-descendants, including Haitian nationals; the role played by non-governmental organizations in migration and regularisation processes; migrants’ access to COVID-19 vaccines; and Chile’s relationship with the International Organization for Migration.

ALVARO BOTERO NAVARRO, Committee Member and Country Co-Rapporteur for Chile, stressed the importance for migrants to be able to mount a defence when they faced deportation, and requested information on measures to ensure that their procedural rights were protected under the new migration law.

Responses by the Delegation

JUAN FRANCISCO GALLI, Under-Secretary of the Interior of the Ministry of Interior and Public Security of Chile, providing additional information on expulsions and procedural guarantees, said there were three scenarios that led to expulsions.  These measures were carried out as a result of court rulings, administrative proceedings, or when a foreign national had entered Chile through irregular border crossings.  Entering the country through irregular border crossings and avoiding border guards amounted to a criminal offence, but individuals who engaged in that practice were only subjected to administrative proceedings, as had been explained before by the delegation.  They could be housed in hotels while additional investigations were conducted, and the expulsion process was launched.  After they had been notified of the initiation of the expulsion procedure, there was a 24-hour delay before the expulsion was effectively carried out.  The expulsion did not take place when the appeal required that it be stalled.  Individuals had 10 days to challenge the grounds for expulsion and launch a judicial appeal before a court.  Circumstances such as family ties and being accompanied by children were taken into consideration by the State; Chile did not expel foreign nationals who had entered the country irregularly if they were accompanied by children or adolescents. 

Affirming that all migrants had access to COVID-19 treatment, Mr. Galli said that, given the nature of the virus, it would be counterproductive, irrational even, for the Government to discriminate on the basis of migratory status.  The Government sought to prevent social division by showing it was monitoring the borders and countering disinformation.  It was important to manage perceptions, as the way in which migration was regarded by the population could have a greater bearing on social cohesion than facts. 

Venezuelans could apply for a “Democratic Responsibility Visa” while they were in Venezuela.  These visas were different from consular visas, which were meant for those who wished to visit Chile as tourists.  The Government had no reports of discrimination on the ground of origin against Haitians.  However, the Ministry of Migration was making efforts to foster greater inclusion in the country.

The delegation added that the integration of French-speaking migrants was a major challenge.  Among integration schemes, there were now 120 Haitian Creole or French-speaking interpreters across the country, and a remote translation platform had been developed which also worked well with Haitian migrants.  Measures had been taken to foster access to education for migrant children, notably by developing materials for pupils learning Spanish as a second language, as well as to tackle racism and xenophobia.

On the performance of administrative functions related to migration outside of the Santiago area, 37 sub-units would be established, and regional directorates would be created to implement the migration policies and address region-specific needs.
When a refugee status was denied, the concerned individual had 30 days to ask for another visa under the migration law if they had entered the country regularly.  Those who had entered the country clandestinely had 10 days to declare their clandestine arrival and provide substantive reasons warranting it.  Migrants sometimes believed, wrongly, that an asylum request was the most certain way to regularise their status, the delegation said.

The delegation assured that any child born in Chile was Chilean, including all children born to migrants.  While the “transient” status was previously used by authorities, this was no longer the case, and references to such status had been stricken from over 2,000 birth registries.

Concluding Remarks

ALVARO BOTERO NAVARRO, Committee Member and Country Co-Rapporteur for Chile, stressed that individual decisions required individual analysis.  Collective expulsions were punitive in nature.  It was still not clear how the rights of people who had been expelled in Colchane had been protected. 

EDGAR CORSO DE SOSA, Committee Member and Country Co-Rapporteur for Chile, asked what kind of analysis would be performed in providing migrants with channels of regularisation.  He thanked the delegation and all those involved.  All those present had been learning from each other, he said, and wished the best to Chile in the context of the adoption of its new Constitution.

JUAN FRANCISCO GALLI, Under-Secretary of the Interior of the Ministry of Interior and Public Security of Chile, assuring that additional information would be provided in writing, said the new law would clarify its migration policies, and this greater clarity would foster dialogue like this one. 

CAN ÜNVER, Chairperson of the Committee, thanked the delegation for the constructive dialogue, and agreeing to take part in an exchange in a virtual format, which had its drawbacks.