The New Chilean Government and its Shifting Attitudes on Migration Governance

Chilean President Sebastián Piñera has started his second term in office – his first presidency was 2010-14 – with a strong shift on migration policy and governance. The inability of the previous President, Michele Bachelet, to modify Chile’s out-dated Pinochet-era immigration law from 1975 has given Piñera the perfect excuse to make migration reform one of his priorities.

Chile’s migration history is far from linear: while it was not one of the main destination countries in the early twentieth century, it still attracted some migrants. The peak of Chile’s foreign-born population was almost 140,000 or 4 percent of the total population in 1907. The historical minimum was registered in 1982 under the Pinochet dictatorship, when foreign residents represented only 0.7 per cent of its population. The return to democracy in 1990, political stability and a dynamic economic performance made Chile an increasingly attractive destination for foreign nationals. Currently, migrants constitute around 5.5% of the total population, a number that has grown with staggering speed in the last four years: even if it remains below the 10% or more foreign population percentages seen in the main immigration destination countries in Western Europe and North America. Of these migrants, 300,000 are estimated to be “irregular”, which is mainly the result of Chile’s very complex legal system. In addition to this, the origin and ethnic profile of the migrants has diversified: Chile not only receives South American nationals, but in the last years its Haitian community has grown considerably. All of this has pushed migration up the domestic agenda. It might be useful to note that more than 850,000 Chileans reside abroad.

In March 2018, the Chilean president introduced a series of measures affecting migration, including a law proposal, administrative decrees dealing with visa procedures for Venezuelan and Haitian migrants and, finally, a regularisation process. The new proposals need to be understood in the context of this non-linear migration history and as part of a longer-term debate between various actors within Parliament and society. Many of their provisions reflect a juxtaposition of visions between securitisation and human rights, much as can be seen in other recent immigration norms from South America (e.g. Brazil and Argentina).¹ On this occasion, though, the balance is more heavily tilted towards a restrictive vision, something also apparent in Piñera’s discourse and his reference to “tidying up the house we share” and in his portrayal of a modern law as one that “combats irregular migration”² – a terminology very much in line with the EU’s. Indeed, the current administration takes Western countries’ migration policies as a model. For instance, when discussing the creation of a Migration Service, the head of the Department of Foreigners emphasised in an interview: “I’m thinking of a Migration Service that competes with New Zealand, that competes with Estonia, that competes with Canada.” Similar comments were made in another interview in relation to technological innovations for visa procedures.

In addition, Piñera and his government have emphasised that the new policy is in line with the motto of “safe, orderly and regular migration”, prevalent in current global discussions. However, this rhetoric is used in Chile to justify restrictive policies supposedly to protect migrants. As expressed by the Head of the Department of Foreigners of the Ministry of Interior in a recent interview: “The big issue here is the trade-off that you have to make between a policy of open borders – an idea that I share as I am a liberal – versus having a policy of orderly, safe and regular migration for the migrants themselves.”

Similar words have been used by European countries with the intention of restricting migration. The contradictions between Chile’s international rhetoric and its new migration measures reveal an emphasis on controlling mobility to, allegedly, protect migrants. As stated by the Subsecretary of Interior, Rodrigo Ubilla: “The president believes that states, according to internal legislation, can establish clear norms of entry and expulsion. We must not confuse migration as a right, with the rights of migrants, because that is different, and we have recognised that in our proposal”.

The inconsistencies between human rights and securitisation are not necessarily unique to this government, and they are in line with the switch to migration ‘management’ that we have identified in the region more generally ³. There are, however, several aspects that are paradigmatic in Chile. Here we discuss three:

Irregular migration: in line with many other new laws in the region, the proposal incorporates the principle of the non-criminalisation of irregular migration as one of its pillars stating that, as such, irregular migration does not constitute a crime (Art. 8). These principles have led, in other, South American countries to an approach where regularisation takes precedence over expulsion; only when the undocumented migrant is offered an opportunity to regularise, but does not manage to do so under the legal rules, does expulsion become possible. Chile’s project incorporates a one-off regularisation process that will run for three months. However, once the procedure ends, all those not regularised will be expelled ⁴. Regularisation is also effectively made impossible in the proposal. Tourists (e.g. those with a transitory residence permit) cannot apply for a residence permit, unless there are exceptions deriving from international treaties ratified by Chile (Art. 49). This opens numerous questions. To begin with, there is an excessive reliance on expulsion (Art. 82) as the solution to irregularity. This ignores how overtly restrictive approaches have failed elsewhere. For instance, the European Union, with all its impressive arsenal of deterrence tools and measures, only had a 45.8% return rate of those asked to leave by 2016 ⁵. Secondly, the proposal is more restrictive than, for example, the EU’s immigration law framework when it comes to voluntary departure or entry bans after expulsion, as well as incorporating the possibility of pre-removal detention. Finally, this goes against the MERCOSUR Residence Agreement, which makes it possible for nationals of most South America countries to apply for a residence permit when residing irregularly in a second ratifying state.

Regional migrants: the legal status of regional migrants is a second example of inconsistencies in the new Chilean policies. The aforementioned MERCOSUR Residence Agreement is simply ignored in the proposal even if it has been in operation in Chile since December 2009. A vague reference to the possibility of granting temporary residence to foreign nationals protected by international treaties is mentioned (Art. 61(8)). Non-application by Chile could, of course, lead to the non-application by other South American countries to Chileans in these states.

Special visas for Venezuelans and Haitians: Two of the administrative measures taken by the government by decree have been the immediate creation of some new visa categories. One is called the ‘visa of democratic responsibility’ aimed at Venezuelan migrants: it has to be requested in Caracas and grants a one-year temporary visa, renewable for another year. By contrast, Haitians have had imposed a new tourist consular visa valid for only 30 days – rather than the 90 days granted to other nationalities. This visa must be requested in Haiti. Those willing to arrive in Chile to work who do not have family members already in the country, will be able to apply, as any other foreigner, for the so-called ‘visa de oportunidades’. But, unlike Venezuelans, they will receive no special treatment. The government has argued that these visas aim to clarify why Haitians come to the country as well as to protect them upon arrival. However, migrant organisations have argued that the visa is discriminatory (as it only applies to a few nationalities) and that it may lead to more irregularity: much as happened with the similar consular visa for Dominican migrants some years ago. The idea of a consular visa was also discussed by the previous government. As one of our interviewees explained: “We did some research on the border in 2014 and we started to see the negative impact of the visa for Dominicans and we started to give interviews and show how this restrictive policy has negative consequences. Imposing this visa doesn’t regulate, instead it de-regulates and generates human trafficking and irregular entry. That is why we are all opposing a visa like this one on Haitians.” (08.08.2017, NGO director).

The government’s “tidying up the house” discourse has proven to be popular among many Chileans. Even a number of migrants have welcomed some of the measures, such as the one-off regularisation. However, the debate is far from being over. Last week thousands of migrants started to go to the regularisation points to register, a process that will continue for three months. There have been long queues, confusion and disinformation in these first few days. What is clear is that Chile is shifting, moving from a situation of inertia, to a more restrictive migration policy, using the international discourse of “safe, orderly and regular migration” as a way to increase migration control. This restrictive approach coexists with a human rights discourse still prevalent at the regional level in South America. The changes announced in April include some discriminatory elements (visas for certain groups of people), the adoption of piecemeal measures (such as temporary regularisations) and a vision that looks to Northern developed countries, whose migration characteristics differ from Chile’s. This approach also reduces the importance of regional partners, weakening the South American migratory regime.

The current scenario begs the question of whether these changes are about the new Chilean government, or whether Northern migration ideas are already finding a place in South America. In the case of Chile, the answer may be both.

The EUI, RSCAS and MPC are not responsible for the opinion expressed by the author(s). Furthermore, the views expressed in this publication cannot in any circumstances be regarded as the official position of the European Union.