South American De Jure and De Facto Refugee Protection: Lessons from the South

Forum on the new EU Pact on Migration and Asylum in light of the UN GCR

Contribution by

Leiza Brumat, European University Institute (EUI) and Luisa Feline Freier, Universidad del Pacífico – Lima, Peru

26 October 2020

This article discusses the characteristics of refugee protection in South America, including de facto protection stemming from the region’s mobility regime. In light of the recently released European Union (EU) Pact on Migration and Asylum, which adopts a sharp distinction between ‘refugees’ and ‘irregular migrants,’ the former referring to individuals who deserve protection and the latter to those who should be detained and returned, we suggest that South America presents an interesting case of a dual regional regime for mobility and refugee protection. This regime makes the distinction between irregular entry and stay, on the one hand, and asylum seekers and refugees, on the other, almost irrelevant in practice, as irregular migrants have access to basic rights and legal residence, in many cases. The region further combines this dual human rights-focused regime with an informal regime based on policy practice, which allows people to move – and find protection – across borders.

More specifically, we focus on Venezuelan forced displacement – the largest displacement crisis the region has ever faced. We further ground our analysis in South America, as the region has developed a human mobility regime that, as we will argue, offers an alternative de facto form of protection. Since 2015, more than 5mn Venezuelans have moved to neighbouring countries, and over 90 per cent of them moved within South America. In mid 2020, close to 1.8mn Venezuelans were officially living in Colombia; 830,000 in Peru; 455,000 in Chile; 365,000 in Ecuador; and 265,000 in Brazil.Between 2017 and early 2020, before the COVID19 crisis, 5,000 Venezuelans fled their country every day as the borders of South American countries remained largely open.

These numbers are far higher than the number of asylum seekers most European countries received during the Mediterranean refugee crisis. While the EU, with a total population of around 450 mn persons, received 1.5 mn Syrians at the height of the crisis, South American countries, with a similar population (430 mn), received over 4.5 mn Venezuelans in the last four years. Although the Venezuelan exodus slowed down due to the pandemic, it never ceased and experts expect the outflow to significantly increase once borders across the region fully reopen.

Latin America’s Formal Refugee Protection Regime

Freier (2015) identifies fives phases of Latin American refugee policy liberalization since the mid 20th century: (1) the ratification of the 1951 Convention in the 1960s; (2) the ratification of its 1961 Protocol in the 1970s; (3) the adoption of a constitutional right to asylum; (4) the incorporation of the Cartagena refugee definition since the 1980s; and (5) reforms of domestic refugee laws since the 2000s.

The Cartagena Declaration is the flagship instrument of this liberalization of Latin American asylum governance. In 1984, state representatives met in Cartagena, Colombia, to discuss workable solutions to the contemporary Central American refugee crisis. The Cartagena refugee definition, formulated as a result of that meeting, extended protection to “persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violation of human rights or other circumstances which have seriously disturbed public order.” Regional action plans and declarations further supplemented these developments: the 1994 San José Declaration on Refugees and Displaced Persons, the 2004 Mexico Plan of Action, and the 2010 Brasilia Declaration on the Protection of Refugees and Stateless Persons in the Americas. To this day, most South American countries have included the expanded definition of refugee from the Cartagena Declaration into their national laws, alongside a human rights-centred approach to refugee protection.

Recently, Freier and Gauci (2020) have compared Latin American refugee laws to EU protection standards, based on the legislative good practices that the United Nations High Commissioner for Refugees (UNHCR) identified in Latin America. They found that six Latin American countries – Argentina, Brazil, Costa Rica, Ecuador, Nicaragua, and Mexico – surpass EU protection standards. Overall, Latin American laws are especially progressive regarding the scope of protection and the socio-economic integration of both asylum seekers and refugees. In South America, Brazil and Argentina offer interesting cases, as the constitutions of both countries include the right to asylum. Brazil was the first South American country to adopt a ‘progressive’ approach to refugee protection in 1997, via Law No. 9,474. Argentina approved Law No. 26,165 in 2006.

Both of these laws not only adopt the ‘expanded’ refugee definition of Cartagena, but also extend the same rights of nationals to refugees, except the right to vote in national elections. Furthermore, the Argentinian law is exceptional in that it stipulates a) that asylum-seekers are protected by the principle of non-refoulement from the moment they are subject to the country’s authority, even outside its territory, b) group determination of refugee status in case of a mass influx of asylum-seekers, and c) that authorities will take into account the needs and the cultural values of the applicant when considering requests for family reunification. Both countries provide the possibility to grant humanitarian visas, as well as pathways to legal status, for victims of environmental disasters. They also grant both refugees and asylum seekers the right to work, call for a swift accreditation of foreign degrees, and offer full access to public healthcare and education.

Freier and Gauci (2020) suggest that the EU should look to Latin America regarding the expanded Cartagena definition of refugee, the principle of non-refoulement, and strengthening socio-economic and political integration of asylum seekers and refugees. In both regions, recent ‘migration’ or ‘refugee’ crises have challenged each country’s capacity to deal with larger inflows of asylum seekers and migrants in need of protection. Indeed, Venezuelan forced displacement has posed the first real test to Latin America’s progressive refugee legislation.

De Facto Protection through the Regional Mobility Regime

Since 2017, when emigration from Venezuela increased dramatically, South American countries started to debate the adequacy of governance tools to manage these flows. Two contentious issues emerged. The first was the question of whether Venezuelans should be considered migrants or refugees, as there was no regional consensus on whether or not to extend refugee status prima facie to them based on the Cartagena definition of refugee. Both academics and UNHCR called for the recognition of the majority of Venezuelans as refugees, and the applicability of Cartagena recognized by many policy-makers in private conversations. Thus far, only Brazil and Mexico have applied the Cartagena refugee definition to a significant number of Venezuelan asylum seekers.

The second issue was that Venezuela was the only country that had not ratified the Residence Agreement (RAM) of the Southern Common Market (MERCOSUR), which could potentially give legal migratory status to most Venezuelans living in other South American countries. Even though the legal status of Venezuelans and the protection of their basic rights had been discussed in many regional meetings since 2017, South American countries could not agree on the application of a common approach to deal with this crisis. Most South American countries decided to adopt diverse ad hoc measures, such as temporary visas and border mobility cards. Only Argentina and Uruguay decided to unilaterally apply the RAM to Venezuelans.

The RAM was signed in 2002 and entered into force in 2009. All South American countries, except for Venezuela, have ratified it. The RAM is regarded as a milestone in regional migration governance in South America, as it is a central part of the regional regime that facilitates the movement of persons within South America, promoted by the two main regional organizations: the Andean Community (CAN) and MERCOSUR. The RAM creates a free residence regime that focuses on equal treatment, socio-economic inclusion and regularisation. The RAM provides the right of residence for up to two years, after which migrants can apply for permanent residence after proving a ‘lawful source of livelihood’ (Art. 5 of the RAM), independent of the legal status and economic situation of the person and whether migration was ‘voluntary’ or ‘forced.’ Thus, the regular vs. irregular status of migrants is not paramount for migrants’ access to rights and regularisation. This constitutes a fundamental difference with the EU Pact, which is centered on the ‘control’ and ‘return’ of irregular migrants.

Both temporary and permanent residence permits guarantee a wide set of rights that could work as de facto protection. These rights include treatment equal to that of nationals, civil rights equality, family reunification, the right to send remittances, and special rights for children born in one of the Member States (including access to education) (Arts. 7 and 9 of the RAM). This means that the RAM can be used for granting residence rights to refugees as an alternative to formal refugee protection. As the Argentine example shows, more than 200,000 Venezuelans have already obtained the right to residence in Argentina though the RAM in the last four years.

In addition, the human rights approach to migration adopted by the South American Conference on Migration (SACM) needs to be highlighted. Countries across the region have committed themselves to avoid deportations of nationals of other Member States, alongside relatively easily accessible bureaucratic procedures and documentation for obtaining legal residence. The underlying logic of this mobility regime is that, as migration is an ‘inevitable’ phenomenon, people will keep crossing borders. Consequently, the solution to irregularity is regularisation, not deportation. While scholars have pointed out structural implementation gaps between South American rights-based migration and refugee legislation, and protection gaps for extra-regional nationals, the mobility regime offers room for creative alternative approaches to protection, and allows civil society across the region to insist on its implementation and the protection for all.

Conclusion: Lessons from the South

South America presents an interesting case that could offer some lessons for other world regions. Unlike Europe, its regional refugee regime does not create ‘external borders’, so there is no need to enforce them, in sharp contrast with the new EU Pact on Migration and Asylum. At the same time, the South American intra-regional regime works in at least two different, and sometimes contradictory, ways. On the one hand, legislation – the formal dual regime – is exceptionally progressive with a view to the expanded refugee definition of Cartagena and the socio-economic integration of both asylum-seekers and refugees, but also of intra-regional migrants. For example, across the region, Venezuelans can work as soon as they arrive in most host countries, regardless of their status as economic migrants, asylum seekers or refugees. Given the largely informal character of South American labour markets, even irregular migrants start working as soon as they arrive in their destination country, and in some countries such as Argentina, their labour rights are protected.

On the other hand, formal refugee legislation coexists with different policy practices, some of which are restrictive and violate the international obligations that these countries have, while others offer alternative protection for refugees. For example, most South American borders have remained open to legal Venezuelan immigration despite the massive scale of this displacement. Other countries, such as Ecuador and Peru, have limited legal entry for domestic political reasons. In either case, there is regional awareness that borders are porous and that it is not possible to stop people from migrating. Following this logic, even for countries that have seen recent restrictive policy shifts towards Venezuelan immigration, the solution to irregular arrivals is not deportation, but regularisation.

South American countries have opted for migrant regularisation, not only because of an ideological paradigm shift, which led States to increasingly follow a human, or migrant’ rights- based approach in the past 20 years, but also because of pragmatic reasons. A regularised migrant population is easier to integrate into society and the formal economy, which benefits the state, especially in the case of highly skilled migrants. Migrant regularisation is also paramount from a public health approach, especially in times of COVID-19. Although there are significant intra-regional differences and increasing resistance to regularisation due to the large scale of Venezuelan displacement in some countries, overall this stands in opposition to the logic that prevails in the EU. As seen in the recent Pact, its underlying logic is premised on territorialisation and set on blocking the arrival of those who seek protection.