Is free movement in Europe an anomaly? The new open borders policy in South America

Free movement of people in the European Union (EU) is currently under attack by certain political and media sectors across Europe, with proposals arising on how to limit its scope. At the same time, other regions in the world are adopting free movement regimes. This is important to highlight as it allows us to demonstrate that the EU’s free movement regime is not an anomaly as its opponents often argue. It also enables us to compare how different regions function which can lead to ideas and proposals for refining legislation and policies. As such, current debates on the construction of a South American citizenship as well as the MERCOSUR Residence Agreement, effectively establishing an open border area in the region, deserve our attention in Europe.

In South America, instances of regional free movement can be traced back to at least the 1970s when one regional organisation, the Andean Community, sought to regulate the issue with little success. Free movement was also introduced to the agenda of MERCOSUR (another regional organisation created in 1991, now consisting of Brazil, Argentina, Paraguay, Venezuela and Uruguay, although Paraguay is currently suspended).

In 2002 the MERCOSUR Residence Agreement was adopted. Implemented in 2009, the Agreement’s main objective is dealing with the situation of intra-regional migrants and it has transformed the migration regime for South Americans. It provides that any national of a MERCOSUR or Associate Member State may reside and work for a period of two years in a host State. After two years, the temporary residence permit may be transformed into a permanent one if the person proves legitimate means of living for himself or herself and any family members. It also lays down a number of rights including the right to work and equal treatment in working conditions, family reunion or access to education for children. All countries in South America (ie, not just MERCOSUR countries) have ratified the agreement and apply it with the exception of Venezuela, where it is currently in discussion, and Surinam and Guyana where it is yet to be adopted.

Differences between the MERCOSUR Residence Agreement and the Directive on EU citizens

MERCOSUR’s Residence agreement differs from the EU’s free movement regime in various ways. First, there are differences in terms of who can move under both pieces of legislation. In contrast to the EU, where there is an obligation to be working or to prove sufficient resources in order to be able to reside in another Member State for longer than 3 months, citizens in South America may reside for up to two years by simply providing an identification document and proof of a clean criminal record for the previous five years. However, under the MERCOSUR agreement the burden is on the individual to prove that they are not a threat to public policy or security by producing such a clean criminal record. In Europe, by contrast, the responsibility lies with the national authorities to demonstrate that the person endangers public policy or public security of the State.

Second, there are also conceptual and implementation differences. Free movement of people does not constitute a fundamental freedom in South America. It is rather the result of an international treaty, the MERCOSUR Residence Agreement, for which there are no coercive intra-regional mechanisms to ensure implementation or impose sanctions for violations. In other words, MERCOSUR does not have a Commission capable of launching infringement proceedings or a Court of Justice having the final word on interpretation disputes. If disputes arise they are rather informally solved at the level of the MERCOSUR Migration Forum composed of government officials in charge of migration portfolios. This, in turn, leads to great variation regarding the implementation of the agreement, with some countries applying it without restrictions, e.g. Argentina or Brazil; others only implementing it for nationals of a reduced group of countries, e.g. Chile; and others still, such as Ecuador, imposing very high fees to obtain the residence permits (230 and 350 U.S. dollars for the temporary and permanent residence permits respectively – something which would not be possible in the EU). Finally, Uruguay implements it more generously and has recently adopted legislation by which nationals of MERCOSUR and Associate States will be able to directly obtain permanent rather than temporary residence, by simply proving their citizenship.

Also, the agreement is unclear in many aspects. It does for example grant a right to family reunification without establishing who are considered to be family members. It also provides equal treatment with regards to all social, economic and cultural rights, without however developing further such an important provision.  As is well known, these two issues have been and continue to be the subject of constant litigation at EU level. Finally, the agreement does not provide for any extra protection against expulsion for regional citizens, as it is the case in the EU. Moreover, if the individual concerned fails to transform his or her temporary residence permit into a permanent one after two years, his or her residence status falls outside the scope of the agreement and it is regulated by national law alone.

The future of citizenship in South America

The MERCOSUR Residence agreement is one of the various ongoing measures being proposed and adopted in South America towards the establishment of a new regional citizenship by 2020. Two other proposals for regional agreements at the MERCOSUR and Andean Community level would, if approved, grant further free movement rights not only to regional citizens but also to third-country national residents. This would go well beyond the EU’s current regime and would materialize the vision to extend free movement to extra-regional migrants, which has been long defended in Europe by scholars, NGOs, think tanks and certain MEPs.

Finally, South America’s liberal migration discourse during the last 15 years, as represented by the 2013 Buenos Aires declaration calling on the human right to migration, the recognition of migrants as subjects of Law and the rejection of any attempt to criminalize irregular migration, makes scrutinising these developments worthwhile, because of the potential policy lessons which may emerge in both directions and which may challenge established assumptions on how to regulate mobility.

Further reading on the topic:

This article first appeared on the EU Law Analysis website: http://eulawanalysis.blogspot.co.uk/2014/11/is-free-movement-in-europe-anomaly-new.html