Guest post by Lila García. Lila is a researcher at the National Council of Scientific and Technical Research (Consejo Nacional de Investigaciones Científicas y Técnicas – CONICET) and Assistant Professor of the Political Science Department, Universidad Nacional de Mar del Plata, Buenos Aires, Argentina.

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In March 2021, the government of Argentina derogated decree No. 70/2017 and restored the full validity of both the Citizenship (No. 346, 1869) and Migration (No. 25,871, in force since 2004) Laws. In doing so, the country sought to be in line with a more human rights-based migration policy that started in 2004 but had dramatically changed since 2016.

In this post, I argue that the recognition of basic rights to foreigners has been part of Argentina’s nation building as an independent country but also that it has gone through many changes since then, reflecting a tension between foreigners’ rights and state sovereignty. The right-wing coalition government that was elected in Argentina in 2017 deployed a regressive migration policy which sharply undermined key aspects of migrants’ rights at the time and expanded the state’s power to deport, while also restricting the grounds for obtaining citizenship. In 2021, the current government abrogated many of those initiatives.

Argentina, from an open beginning to restrictions through rights

Argentina has been historically shaped by international migration, with the number of immigrants reaching a historical peak in 1914, representing 30% of the total population then. In fact, immigration was perceived as part of building the nation, under the slogan “to govern is to populate”, launched in 1852 by a politician named Juan B. Alberdi. In line with expressly encouraging immigration, the Argentine National Constitution (adopted in 1853) also recognized a set of rights for ‘all inhabitants’ and for foreigners in particular. Additionally, the Constitution declared that foreigners ‘may obtain naturalization by residing two continuous years in the Nation’ (Section 20), a general clause gathered by National Citizenship Law 346 of 1876.

As opposed to the open borders policy adopted in the 19th century, a more restrictive approach was implemented in the 20th century.  In the words of Susana Novick, “the migratory phenomenon was regulated from an almost exclusively police-based perspective”. However, in 2003 the government took a different path. 

A human rights-based migration policy with progress and setbacks

Federal Law 25,871, which came into force in 2004 was welcomed. As I have mentioned in a previous post, the Law was the result of a strong civil society movement and it entailed the end of a policy made exclusively by the Executive Branch, mainly by decrees, resolutions and memorandums. The law recognized migrants as subjects of human rights and migration as a human right, and assigned to the Judicial Branch mandatory competences to protect such rights. It also stated that the lack of regular status should not be an obstacle to claiming rights.

Secondly, it granted the Judicial Branch unprecedented powers in migration policy, by authorizing or reviewing decisions taken by the migration authority (‘Dirección Nacional de Migraciones’, DNM part of the Executive Branch). In practice, this meant that some removal decisions from the DNM were revoked by the Judiciary. 

This framework also allowed the deployment of a massive documentation program that started in 2006. According to the Territorial Approach Program (‘Programa de Abordaje Territorial’), mobile immigration offices traveled to areas where most migrants lived, providing information and allowing migrants to submit visa applications. Finally, in 2010 the Migrant Commission (‘Comisión del Migrante’), was created to provide free legal aid to migrants. Moreover, a Refugee Commission also provided legal tutors (mainly lawyers) for refugee children.

However, the 25,871 law also allowed the Migration authority to exclude people by denying admission or canceling 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’, e.g., due to non-authorized entry. Scholars and activists have also pointed out the lack of a suitable institution to deal with all the aspects of a rights-based law (an ‘institutional deficit’),. 

Hence, when a new right-wing political coalition (‘Cambiemos’, with Mauricio Macri as President) arrived into power in 2016, crimmigration components started to reshape migration policy. In their first year, the new government attempted the creation of a detention center, albeit unsuccessfully, and the number of deportation orders and refusals at the border increased. Furthermore, raids by security forces were performed as a spectacle, with huge deployment of personnel, vehicles and guns. In addition, official discourses that linked migration with crime, drugs and illegality paved the way for (again) a decree from the Executive Branch that would erase positive provisions or practices achieved during the period 2004-2015, such as the ‘Territorial Approach Program’.

This new decree No. 70/2017, known as DNU 70, whose main legal provisions were fully explained in a post before, prevented the Judiciary from enabling the family reunification of migrants and to make a deep analysis on any migrant legal claims by restricting its intervention to formalities. By 2017, the Judiciary had ruled in many legal cases in favor of long-term residents with affective ties in Argentina against whom removal had been ordered by the migration authority. Moreover, federal courts had also ruled against using any people’s criminal records (without considering the minimum of a three years conviction) as ground for removal.

The DNU 70 stated that the two years of residence to access Argentinean nationality referred in both the National Constitution and the 346 Citizenship Law should be legal. Such a clause was aimed to modify a ruling from the Supreme Court of Justice that in 2009 had stated that any kind of residence (even ‘illegal’) in Argentina entitled migrants to ask citizenship, provided that neither the National Constitution nor the 346 Citizenship Law required legality to become Argentinean. Thus, the DNU posited a new obstacle to irregular migrants: over time, many of them had decided to apply for citizenship (before a court) in front of their unsuccessful residence applications before the Immigration Board.

Finally, the application of the DNU 70 flooded the Judiciary with cases, by means of imposing a short time-limit for all administrative proceedings, establishing 24-48 hours deadlines to appeal and other provisions that also jeopardized the judicial review of migration cases and due process guarantees.

And now, what?

In 2019, the same political party under which the 25,871 Migration Law had passed in 2004 won the elections again. On March 4th 2021 and by means of another decree (No. 138/2021), DNU 70 was abrogated. In order to fill the 25871 law’s ‘institutional deficit’ pointed out by many scholars, the government established a body called Advisory Commission of Migration Policy, whose composition and role are still unknown. Additionally, its recommendations are non-binding, so the DNM can legally reject them. These changes might not make a big difference but they may be establishing the ground for restoring a lost dialogue with civil society.

As it has been noted by Ana Paula Penchaszadeh, many civil society initiatives against the DNU took place in the past but with poor results: ‘legal actions, precautionary measures, amicus curiae, technical reports, forums, large and small meetings, agendas, migrantazos, claims, media interventions, hearings, interviews, meetings with political actors, campaigns: the list of advocacy efforts...is so long as short are the outcomes’.

As scholars and practitioners, we have realized that many of the arguments to defend both the 25,871 Migration Law as the 346 Citizenship Law arise from the country’s National Constitution. Being an open country means to entitle foreigners with rights, and being a country that respects the rights of everyone means to open opportunities to ‘all men [and women] of the world who wish to dwell on Argentine soil’ (National Constitution, Preamble).

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How to cite this blog post (Harvard style) 

García, L. (2021). Argentine Migration Policy is Back on the (Human) Right Track. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/07/argentine [date]