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By Diego Acosta Arcarazo, Reader at the University of Bristol Law School 

Dr. Diego Acosta is the author of The National versus the Foreigner in South America. 200 Years of Migration and Citizenship Law (Cambridge University Press, 2018). This blog is based on Chapter 5 of this book, which will be presented at the Odysseus Summer School on Wednesday 11 July.

In South America, pioneering discussions are taking place, challenging global established assumptions on how to control undocumented flows. One can see a clear progress from an initial general nebulous concern with fundamental rights and migration management as solutions to irregular flows towards a much more emphatic, precise and delineated answer lying in three consecutive aspects: non-criminalisation, rights’ protection and regularisation. To various degrees, these three elements have become a flagship and been reaffirmed in numerous regional fora. They have also progressed from political statements into legal provisions prohibiting criminalisation and incorporating principles favouring regularisation. There is thus a unique aspect of how a group of South American countries are trying to regulate undocumented migration. At a comparative level, it distinguishes them from the European Union in certain aspects with differences that are important to understand.

Some innovative approaches towards regularisation deserve in particular to be noticed. As a first reaction when faced with an undocumented migrant, the general rule in the EU – to put it in simple terms – is to limit undocumented migrants’ rights and use return. This does not mean neither that most migrants are expelled or that there are no possibilities to regularise, nor that irregular migrants do not enjoy rights. It simply indicates the rationale behind the law. On the contrary, some South American legislations reverse this paradigm by prioritizing regularisation.

Taking measures for guaranteeing access to a legal status takes various forms. It ranges from a State’s obligation to regularise an individual on the basis of family links to an individual right to obtain residence and to any other attempt for regularisation. Remarkably, the general rule of expulsion is reversed to regularisation. In other words, it is only when regularisation is not possible that expulsion kicks in. In some cases, regularisation is automatic, in others, it is a first option.

Regularisation constitutes an individual right in South America when children possessing the nationality of the host state (i.e. were born there, since all countries except Colombia implement ius soli) or having permanent residence are involved. This derives from the jurisprudence of the IACtHR, which has clearly established that “the rupture of the family unit by the expulsion of one or both parents due to a breach of immigration laws is disproportionate in these situations, because the sacrifice inherent in the restriction of the right to family life, which may have repercussions on the life and development of the child, appears unreasonable or excessive in relation to the advantages obtained by forcing the parent to leave the territory because of an administrative offence” (para 280). On the contrary, in the EU, children who are EU nationals (a minority since ius sanguinis is the norm) have a right, in so far as they are EU citizens, to not have their parents deported only when that would entail the need to leave the entire EU territory and provided that the children are dependent on the parents as a result of the Zambrano jurisprudence. In turn, in ECtHR’s view, family life does not entail the right to live in a particular country.

Beyond family life, attempting regularisation has been materialised as an individual right, parallel to an obligation for the corresponding state. Argentina exemplifies this dynamic between individuals and state: Article 17 of its 2004 Migration law establishes that the government shall provide the adoption and implementation of measures aiming at regularising the status of non-nationals. Once the irregular situation of a migrant is established, the National Migration Directorate is obliged to request him to become regularised and subsequently to provide a period of between thirty and sixty days for this purpose. During that period, migrants may invoke one of the categories under Article 23 of the law, such as referring to a binding job offer. A similar mechanism, clearly representing a legal transplant, may be found in the Brazilian case in its 2017 migration law, with the difference being that the period during which a migrant can be regularised is longer and clandestine entry does not per se impede regularisation. Other countries, such as Bolivia, Ecuador, Peru or Uruguay, provide the right to attempt regularisation as a first option. The inversion of the normal assumption in the EU is thus clear: regularisation is first assessed, and expulsion only envisaged later if this first option is unsuccessful. South American immigration laws are of course still developing and in several respects remain insufficient and contradictory.

Many of the aspects that we would consider to be part of criminalisation trends in the EU (e.g. entry bans, carrier sanctions or landlord control obligations) are also present In South America. Implementation in practice is often disconnected from the law, while new governments in Argentina and Chile seem to be taking a tougher stance on the matter. Yet, South American immigration law is innovative, exceptional and stimulating in certain aspects and hence an important reminder of the need for the EU to look for fresh ideas.