The national government will modify migration law 25.871 and nationality law 346 by way of a Decree of Necessity and Urgency (DNU). The draft DNU that we have gained access to will change the paradigm of the current law: it expands the causes for detention and deportation of migrants with irregular status; authorizes the review of all residencies granted for anyone with a criminal background or sentence, regardless of type of crime or status of legal proceedings; modifies deportation procedures, making them immediate, without judicial oversight or proper legal defense; eliminates family ties and having put down roots in the country as conditions to prevent deportation.
The proposal also seeks to change the terms of access to Argentinian nationality: instead of asking applicants to prove more than two years residency in the country, it proposes that the application be evaluated by a federal judge once said residency is shown to be “legal”, thus reinstating the criteria in place during the last civil-military dictatorship that was modified under the government of Raúl Alfonsín.
The text is a setback for the rights of migrant persons. Its effect will set in motion a powerful tool of unlawful social control. Migrant persons will be put in a position of greater fragility: precarious work, harassment by police forces, reduced school enrollment and access to health care due to the constant threat of being captured by the criminal justice system.
A migrant person – regardless of regular residency status – who makes a living through street vending can be criminally reported for that activity or for resisting eviction from a public space. Judges and prosecutors will be required to notify the National Migration Office of criminal cases in which a migrant is identified as the perpetrator, thus putting in motion the procedure for deportation or review of residencies already granted. Merely being indicted for any crime punishable by prison could result in deportation from the country, with little possibility of defense in the migration procedure.
If the government decides to go forward with this reform, bypassing Congress once again, this will be a dire sign: it will restrict human rights without any parliamentary oversight and establish a migration policy that is contrary to the international commitments entered into. Furthermore, it will do so unconstitutionally in regulating a matter for which legislation by DNU is prohibited and without the proper requisites. As has already occurred, this demonstrates a clear lack of democratic process.
The Committee on the Elimination of Racial Discrimination (CERD), which had celebrated Argentine migration legislation in 2004 and in 2010, admonished the government on Dec. 9 of last year not to adopt any measure that would mean a setback in terms of the normative framework in force at that time. The Committee also underlined “the lack of fluid, regular dialogue with migrant associations.” The adoption of this DNU without any room for discussion shows the severity of this lack of dialogue. Migration Law 25.871 was the product of a consensus achieved through broad debate started back in 1999 by different stakeholders across social, academic and legislative arenas, which allowed for the repeal of the former migration decree-law known as the “Videla Law.”
The government announced this reform as part of its security policies. President Mauricio Macri asserted that “we cannot allow crime to continue choosing Argentina as a place to act as a result of our inaction.” Putting it this way is a deceiving misuse of information. The crime rate by migrant persons as a whole is insignificant: less than 6% of the prison population is made up of foreigners. The fact is there have been some severe crime cases involving foreign persons and/or that have gotten much publicity. However, the current law already establishes mechanisms for deporting those with a final decree for serious crimes (such as drug trafficking). In other words, the reform is not aimed at those who commit serious crimes, but rather at expanding and toughening control over those who commit misdemeanors (such as street vending). For these reasons, this measure will have less of an impact on crime prevention and more on restricting the rights of migrant persons will little means of recourse. It is, therefore, a clear policy of social exclusion.
For some years now, the association made between migrants and crime has been used by governments to achieve the same ends: instilling a false problem in order to divert the public agenda from other, more urgent and significant issues, while at the same time showing a supposed commitment to crime prevention that avoids confronting the serious problems of security and violence.
Centro de Estudios Legales y Sociales – CELS
Comisión Argentina para los Refugiados y Migrantes – CAREF
Red de Migrantes y Refugiados en la Argentina
Red Nacional de Líderes Migrantes