INTERNATIONAL MIGRATION IN THE AMERICAS SICREMI Organization of American States REPORTS

Transcription

1 INTERNATIONAL MIGRATION IN THE AMERICAS SICREMI 2011 COUNTRY REPORTS Organization of American States

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3 Organization of American States INTERNATIONAL MIGRATION IN THE AMERICAS First Report of the Continuous Reporting System on International Migration in the Americas (SICREMI) COUNTRY REPORTS 2011

4 OAS Cataloging-in-Publication Data International Migration in the Americas: Country Reports, First Report of the Continuous Reporting System on International Migration in the Americas (SICREMI) p.; cm. Includes bibliographical references. (OEA Documentos Oficiales; OEA Ser.D) (OAS Official Records Series; OEA Ser.D) ISBN Emigration and immigration--economic aspects. 2. Emigration and immigration--social aspects. 3. Emigration and immigration law. 4. Alien labor. 5. Refugees. I. Organization of American States. Department of Social Development and Employment. Migration and Development Program (MIDE). II. Continuous Reporting System on International Migration in the Americas (SICREMI). III. Title: Primer informe del Sistema Continuo de Reportes de Migración Internacional en las Américas (SICREMI) IV. Series. OEA/Ser.D/XXVI.2 OGRANIZATION OF AMERICAN STATES 17th Street and Constitution Ave., N.W. Washington, D.C , USA All rights reserved. Secretary General, OAS José Miguel Insulza Assistant Secretary General, OAS Albert R. Ramdin Executive Secretary for Integral Development Mauricio Cortes Costa Director, Department of Social Development and Employment Ana Evelyn Jacir de Lovo Coordinator, Migration and Development Program Araceli Azuara Marcia Bebianno Simões and Juan Manual Jiménez, specialists of the Migration and Development Program of the Department of Social Development and Employment of the Organisation of American Status, were in charge of the technical coordination of this report. Maria Gueddy Moreno Antelo and Emiliano Ruprah, consultants of the Migration and Development Program of the Organisation of American States, the national correspondents assigned by the participating Member States and Luis Herrera Lasso of the Coppan Group, S.C.participated in the elaboration of this report. The Country Reports were validated by the respective Member States. The report was designed by Ultradesigns Inc. The document was translated from Spanish by Link Translations Inc. Karina Gould collaborated in the review of the texts and along with Ana Maria Lara provided logistical support in the production of this publication. The preparation and diffusion of this document was made possible thanks to the support of the Spanish Ministry of Foreign Affairs and Cooperation. This publication can also be found on-line at The partial or complete reproduction of this document without previous authorization could result in a violation of the applicable law. The Department of Social Development and Employment supports the dissemination of this work and will normally authorize permission for its reproduction. To request permission to photocopy or reprint any part of this publication, please send a request to: Migration and Development Program Department of Social Development and Employment Organization of American States 1889 F ST N.W. Washington D.C , USA Fax: migration@oas.org

5 / iii INTRODUCTION In this publication we present the Country Reports of the First Report on International Migration in the Americas of the Continuous Reporting System on International Migration in the Americas (SICREMI for its acronym in Spanish), an initiative that aims to contribute to the design and implementation on migration policies by contributing technically rigorous and up-todate information of various aspects of the migration phenomenon. The Country Reports of this SICREMI 2011 Report provide information on Argentina, Belize, Canada, Chile, Colombia, El Salvador, Ecuador, Mexico and Uruguay, to which Barbados, Bolivia, Brazil, Costa Rica, the Dominican Republic, Guatemala, Panama, Paraguay and Peru will be added in the 2012 SICREMI Report. The Country Reports contain a brief historical overview of the evolution of international migration alongside a description of the national legal framework and the evolution of recent migration policy. Furthermore, recent trends in migration flows, and diverse demographic and labour market indicators of the migrant population are also presented. The information collected comes from diverse national sources, which have been systematised according to the technical criteria specified in the report and supported by the experience of the OECD. The network of national correspondents on which the SICREMI is structured is based on creating a space for dialogue and to exchange experiences between the countries of the region and experts in the topic of international organisations that collaborate in this effort, as much in the production and the systematisation of information as on the diverse aspects of migration relevant for the region. This first step demonstrates that it is possible to obtain valuable and up-to-date information on diverse aspects of international migration in the Americas when diverse actors linked to the topic at both the national and international level come together.

6 NETWORK OF NATIONAL CORRESPONDENTS Participating OAS Member States in the 2011 SICREMI Report Argentina Martín Arias Duval, Director, Dirección Nacional de Migraciones Federico Luis Agusti, Director, Dirección de Asuntos Internacionales y Sociales, Dirección Nacional de Migraciones Belize Miriam Willoughby, Statistics Specialist, Acting Manager, Census Surveys and Administrative Statistics, Statistical Institute of Belize Canada Martha Justus, Director, Research and Evaluation, Citizenship and Immigration Canada Chona Iturralde, Acting Research Manager, Citizenship and Immigration Canada Chile Francisco Pérez Walker, Director, Dirección de Asuntos Internacionales y Sociales, Dirección Nacional de Migraciones Raúl Sanhueza, Director, Dirección para la Comunidad de Chilenos en el Exterior, Ministerio de Relaciones Exteriores Pedro O. Hernández González, Section Chief, Departamento Planificación Migratoria Internacional, Dirección para la Comunidad de Chilenos en el Exterior, Ministerio de Relaciones Exteriores Colombia Nestor Orduz, Advisor, Colombia Nos Une Program Cesar Camilo Vallejo, Advisor, Colombia Nos Une Program Francisco A. Melo, Advisor, Colombia Nos Une Program Ecuador Fernando Solíz Carrión, Advisor, Secretaría Nacional del Migrante Patricia Ruiz, Planning Analyst, Secretaría Nacional del Migrante El Salvador Jairo Damas Cruz, Chief of Migrant Workers Section, Ministerio de Trabajo y Previsión Social Mexico Ernesto Rodríguez Chávez, Director, Centro de Estudios Migratorios, Instituto Nacional de Migración Uruguay Carlos Calvo, Director, División Estadísticas Sociodemográficas, Instituto Nacional de Estadísticas

7 / v CONTENTS ARGENTINA 1. Overview of the history of international migration in Argentina Overview of the current migration policy framework Human Rights Nationality and citizenship Regulations for entry and stay Refugees Regularisation of status Crimes associated with Migration Trends and characteristics of Argentina s migration policy since the late twentieth century to the presentt Key indicators of migration flows: macroeconomic, demographic and labour market Bibliography Notes belize 1. Overview of the history of international migration in Belize Overview of the current migration policy framework Human Rights Nationality and citizenship Regulations for entry and stay Refugees Regularisation of status Crimes associated with Migration Trends and characteristics of the Belizean migration policy since the late twentieth century to the present Key indicators of migration flows: macroeconomic, demographic, and labour market Bibliography Notes canada 1. Overview of the history of international migration in Canada Overview of the current migration policy framework Human Rights Regulations for entry and stay Nationality and citizenship... 54

8 vi / INTERNATIONAL MIGRATION IN THE AMERICAS SICREMI 2011 ISBN Refugees Crimes associated with Migration Trends and characteristics of the Canadian migration policy since the late twentieth century to the present Key indicators of migration flows: macroeconomic, demographic, and labour market Bibliography Notes chile 1. Overview of the history of international migration in Chile Overview of the current migration policy framework Human Rights Regulations for entry and stay Nationality and citizenship Refugees Crimes associated with Migration Trends and characteristics of Chilean migration policy since the late twentieth century to the present Key indicators of migration flows: macroeconomic, demographic, and labour market Bibliography Notes COLOMBIA 1. Overview of the history of international migration in Colombia Overview of the current migration policy framework Human Rights Nationality and citizenship Regulation for entry and stay Regularisation of Status Refugees Crimes associated with Migration Trends and characteristics of Colombian migration policy since the late twentieth century to the present Key indicators of migration flows: macroeconomic, demographic, and labour market Bibliography Notes ECUADOR 1. Overview of the history of international migration in Ecuador Overview of the current migration policy framework Human Rights Regulations for entry and stay Nationality and citizenship Regularisation of Status Refugees Crimes associated with Migration... 54

9 Contents / vii 3. Trends and characteristics of the Ecuadorian migration policy since the late twentieth century to the present Key indicators of migration flows: macroeconomic, demographic, and labour market Bibliography Notes EL SALVADOR 1. Overview of the history of international migration in El Salvador Overview of the current migration policy framework Human Rights Regulations for entry and stay Emigration Nationality and citizenship Refugees Crimes associated with migration Trends and characteristics of Salvadoran migration policy since the late twentieth century to the present Key indicators of migration flows: macroeconomic, demographic, and labour market Bibliography Notes MEXICO 1. Overview of the history of international migration in Mexico Overview of the current migration policy framework Human Rights Nationality and citizenship Regulations for entry and stay Regularisation of Status Refugees Emigration Crimes associated with Migration Trends and characteristics of Mexican migration policy since the late twentieth century to the present Key indicators of migration flows: macroeconomic, demographic, and labour market Bibliography Notes URUGUAY 1. Overview of the history of international migration in Uruguay Overview of the current migration policy framework Human Rights Nationality and citizenship Regulations for entry and stay Regularisation of Status Refugees Crimes associated with Migration... 54

10 viii / INTERNATIONAL MIGRATION IN THE AMERICAS SICREMI 2011 ISBN Trends and characteristics of Uruguayan migration policy since the late twentieth century to the present Key indicators of migration flows: macroeconomic, demographic, and labour market Bibliography Notes... 49

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14 4 / INTERNATIONAL MIGRATION IN THE AMERICAS SICREMI 2011 ISBN OVERVIEW OF THE HISTORY OF INTERNATIONAL MIGRATION IN ARGENTINA Migration towards the Republic of Argentina in the 19th century and at the beginning of the 20th century can be characterized as overseas migration, with the majority of migrants coming from Europe, leading Argentina to become the second most important country in receiving European immigrants after the United States. Overseas immigration was essential for populating the country, adding approximately 4.2 million individuals to the overall population between 1881 and The largest immigration waves occurred before World War I. In 1914, the number of immigrants reached its highest historical level in relative terms, making up 30% of the entire population. 1 Throughout the 20th century, immigration towards Argentina diminished and lost its relative weight as of the 1947 national census. The volume of international migration decreased, and, what is more, there were changes in its composition; from a predominantly non-neighbour country migration to a sustained increase of immigrants originating from within the same region. Towards the beginning of the 21st century, two-thirds of immigrants were from bordering countries. Beginning in the 1960s, mainly due to the different political and socioeconomic crises that impacted Argentina s society at the time, the country combined its capacity of attracting continental and extra-continental migration flows, with that of the out-migration of qualified human resources to different destinations. Migration history The first record of European visitors to Argentina dates back to the year 1516, when Juan Díaz de Solis arrived at Río de la Plata to claim the territory for Spain. In 1526, Sebastián Gaboto an Italian in the service of Spain sailed upstream and established the first temporary European settlement near the current site of Rosario. After Francisco Pizarro conquered the Incan Empire in Peru in the year 1532 other settlements were founded. From the colony of Asunción, modern-day Paraguay, settlers moved and founded Tucumán in 1565 and Córdoba in Finally, in 1580, Juan de Garay founded a permanent settlement in what is today Buenos Aires. For generations it was a small city as the Spanish concentrated their focus further north. The crown s limited oversight contributed to the independent spirit in the Argentine territories. Strict trade restrictions and merchandise shipping encouraged illegal commerce and Buenos Aires became a smuggling and black market centre. In 1776, Spain created the Viceroyalty of Rio de la Plata with Buenos Aires as its capital. The city was declared a free port and with the increase of imports and exports it started to prosper and its population expanded. In 1778, the Atlantic coast was opened thanks to a free trade policy, which, without a doubt, contributed to the growth of Buenos Aires. This growth attracted more people to the city, including the first immigrants from Germany, Holland and Italy (Hintz, 30). After obtaining its independence from Spain at the beginning of the 19th century, Argentina adopted an open immigration policy and encouraged immigrants to adopt the country as their own. For a brief period of time at the end of the 1880s, the government subsidized passage tickets for immigrants. It is estimated that the country received more than seven million im-

15 Country Reports Argentina / 5 migrants between 1870 and 1930, mainly from Spain and Italy (Jachimowicz, 1). The reasons for this mass exodus from Europe are several. José C. Moya, in his study of Spanish migration, favouring general trends, lists the tendencies of early-stage capitalist modernization as the main causes: demographic expansion; liberalism; agricultural commercialization; industrialization; and advances in transportation (Moya, 44). In the case of the Italian immigrants, Argentina promised to be a new opportunity as they left behind a country impoverished by the unification of the Italian states where unemployment, overpopulation, and serious political conflicts prevailed. Massive immigrations from Europe responded in part to the offer of better wages. On average, a farm worker earned in four or five months of harvesting, between five and ten times more than what he/she earned in his/her country of origin (Veganzones, 52). Another point of attraction was government programmes. In 1862, Congress authorised the hiring of immigrants to colonize national territories, specifically the regions external to the constituted provinces that were governed from Buenos Aires. The Office of Migration (Dirección de Migraciones), established in 1869, appointed agents in Europe to recruit colonists. The new arrivals enjoyed free accommodations, tax exemption on their possessions, and also, as time evolved, free rail transportation (Rock, 141). Many of the first immigrants achieved quick social mobility; although very few were able to acquire lands. In 1854, Buenos Aires had a population of 90,000 inhabitants; towards 1869, the population increased to 177,000, including 41,000 Italians and 20,000 Spaniards; in 1895, the number rose to 670,000 (Rock, 142). In 1914, the immigrant population represented 30% of the total population (Devoto, 49). In Buenos Aires, estimates of the immigrant population vis-a-vis the native born population vary between 60% and 80%. Italian and Spanish communities continued dominating until the 1940s, with 42% and 38%, respectively. During this period the presence of Russian (93,000) and ex-ottoman Empire (65,000) immigrants is also noteworthy (Devoto, 294). In the 1920s, immigration to Argentina decreased due to an immigration policy that made it difficult for foreigners to enter the country. The fear of the governing classes of an immigrant revolt increased security measures at disembarkation ports (Devoto, 356). Meanwhile, in Europe, productivity and wages increased, which represented stronger competition. The 1929 crisis put an end to the massive European immigration that had prevailed at the beginning of the century. The economic recession hit Argentina very hard, making its wages uncompetitive with wages in Europe (Veganzones, 52). With the exception of a brief period after World War II, European immigration continued to decrease. Immigration concentrated mostly between 1947 and 1951 and was more varied than in previous years, it included: Germans, Russians, Yugoslavs, Armenians, Ukrainians, and other European ethnic groups, in addition to the customary Spaniards and Italians. In the second half the 20th Century, European migration was replaced by immigration from bordering countries. For a while, wages in Argentina were the highest in the region. Between 1950 and 1980, Paraguayan immigration represented between 40% and 65% of migration flows coming from bordering countries (Veganzones, 52). Brazil, Bolivia, Chile, Peru, and Uruguay also supplied migrants in the 1980s. Even though this regional migration was not historically significant for the population as a whole (it only represented between two and three percent of the total), with time it became considerable compared to immigration from non-bordering countries, with regional immigration achieving a significant increase of the total foreign-born

16 6 / INTERNATIONAL MIGRATION IN THE AMERICAS SICREMI 2011 ISBN population. At the beginning of the 1990s, regional immigration came to represent more than 50% of the total immigrant population in Argentina (Devoto, 434). The causes of theses migrations are various; however, economic and political instability in neighbouring countries appear to be the predominant push factors. In Paraguay, the Chaco war of 1936 and the civil war of 1947 can be considered causes. In the case of Bolivia, the collapse of the sugar industry and several agricultural products that started in the 1960s triggered the migration of many of these workers towards the construction industry, principally in Buenos Aires. With regards to Chilean immigration, the greatest influx coincided with the overthrow of Salvador Allende and the dictatorship of Augusto Pinochet (Devoto, 457). Likewise, the main cause for the increase of regional immigration towards Argentina and its consolidation as an attractive centre for migrations from bordering countries half way through the 20th century is explained by the country s high standard of human and economic development relative to the migrants countries of origin. This generated, over time, migration chains that facilitated the processes of finding employment and migrant integration within foster communities. Labour migration from bordering countries was mainly concentrated in seasonal activities, housekeeping, construction, and commerce. During the 1960s and 1970s, as well as the beginning of the 1980s, there was an enormous emigration of Argentines to other Latin American countries (for example, Venezuela and Mexico) and also towards the United States, Canada, and Europe. Many of the emigrants were highly qualified professionals, technicians, and scientists. The main reasons for this out migration were the economic decline and the open hostility of the military regime against universities. This situation reached its peak in Under the regime of General Juan Carlos Onganía, 1,305 faculty members of the Universidad de Buenos Aires (University of Buenos Aires) were expelled after an intervention ordered by the government (Gracierena, 1986). After an interlude of democratic governments at the beginning of the 1970s, the political situation worsened yet again with a military coup in Industrial protectionism gave way to policies that opened national markets to international trade, which triggered a significant decline of industrial participation in the gross domestic product (GDP). In addition, the military regime made enormous budget cuts to universities, which delayed developments in research, education, and culture in the country (Pellegrino, 11). In recent years, a great number of Argentines have emigrated to Spain and the United States, among other destinations. This is associated with the economic policy of the 1990s, which led to a decline in the Gross Domestic Product, a high unemployment rate, and a financial crisis (Solimano, 5). A strong demand for foreign labour and favourable naturalization policies in Spain (applicable to Argentines with Spanish ancestry) partially explains why this country has received, in general, a large number of Argentine and Latin American immigrants. However, it is important to highlight that, considering the flow of Argentine travelers (entries and exits) through the country s main international airports from 2003 to the present, the trend of Argentine nationals exiting the country has decelerated. Finally, remittances historically have not weighed very heavily within the Argentine economy, representing only 0.03% of GDP in 2009.

17 Country Reports Argentina / 7 Conclusions Migration flows towards Argentina have been a constant element in the country s history since the beginning of the 19th century. Population contributions, first from Europe, and later from bordering countries and the rest of Latin America have contributed to the formation of Argentina as a nation and its later development. The combination of two processes marked a new stage on the regional migration map: a) the deceleration of transatlantic migration and the return of a considerable portion of immigrants to their countries of origin, and b) the continuous renewal of migrant flows between the Southern Cone countries, as well as the establishment of Argentina as the regional pole of attraction for immigrants from Paraguay, Bolivia, Peru, Chile, and Uruguay. These processes, without a doubt, altered the composition of migration patterns, giving rise to a significant increase in regional immigration in the total foreign born population. To the previous can be added the fact that in recent decades, the country combined its capacity to attract regional migration flows with the emigration of its nationals towards different destinations, principally Spain and the United States. 2. OVERVIEW OF THE CURRENT MIGRATION POLICY FRAMEWORK Argentina has a representative, republican and federal form of democratic government. 2 With a presidential system, the country is comprised of 23 provinces and the autonomous city of Buenos Aires, which is also the capital of the Republic. Legislation arises from the legislative and executive branches, and jurisprudence is limited to the scope of interpretation of legislation in effect. Its judicial system belongs to the Roman-Germanic influx. 3 On May 1, 1853, the Argentine General Congress enacted the Constitution, which was reformed and approved by the National Convention on September 25, 1860, with reforms in 1866, 1898, 1957, and The Constitution organises the State and its branches (powers), declares the principles on which it is based, and establishes the rights of its inhabitants. It is a sole law, superior to all the other constitutions and laws. International treaties: the constitutional reform of 1994, granted constitutional hierarchy to the international treaties ratified by the State, and executed with other nations and international organisations, as well as the concordats with the Holy See. The hierarchy is explicitly mentioned in Article 75, paragraph 22, of the Argentine national Constitution in the following manner: Approve or reject treaties executed with other nations and with other international organisations, and the concordats with the Holy See. The treaties and concordats have higher hierarchy than laws. The American Declaration of the Rights and Duties of Man; the Universal Declaration of Human Rights; the Inter-American Convention on Human Rights; the International Covenant on Economic, Social and Cultural Rights; the International Covenant of Civil and Political Rights, and its Optional Protocol; the Convention on the Prevention and Punishment Prosecute of the Crime of Genocide; the International Convention on the Elimination of all forms of Racial Discrimination; the Convention on the Elimination of all Forms of Discrimination Against Women; the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatments or Punishments; the Convention on the Rights of the Child; according to their effect, have constitutional hierarchy, do not repeal any article whatsoever of the first part of this Constitution, and are to be construed as complementary to the rights

18 8 / INTERNATIONAL MIGRATION IN THE AMERICAS SICREMI 2011 ISBN and guarantees acknowledged by it. They can only be denounced, as the case may be, by the National Executive Branch, prior approval by two-thirds majority of the total members of each Chamber. The other treaties and conventions regarding Human Rights, after being approved by Congress, will require the vote of two-thirds majority of the total members of each Chamber to enjoy constitutional hierarchy. National legislation in force: Law , 4 or the Argentine Migration Act (2004), establishes the country s new immigration policy, by means of which are stipulated actions in alignment with international commitments of Argentina regarding human rights and economic integration. In addition to guaranteeing respect for the human rights of migrants, this law establishes the rights and obligations of foreigners, their entry and stay, as well as some provisions regarding nationals abroad. The national executive branch has the authority to issue the instructions and regulations needed for execution of the laws. 5 Decree 616/2010 approved the regulations of Law 25871, establishing the guarantees of acknowledgment and protection of the human rights of migrants regardless of their legal status in the country, seeking a progressive facilitation of legal procedures, and addressing the real needs of foreigners in transit or residing in Argentina. 2.1 Human rights In 1994, the Constitutional reform did not change the main contents of the Constitution of 1853, although it did modify part of the institutional structure, and incorporated new rights, upon acknowledgment of constitutional hierarchy of international treaties regarding human rights. In general, the national Argentine Constitution establishes rights and guarantees that encompass all inhabitants, as well as non-citizens. Equal treatment of immigrants and Argentine nationals is explicitly established in the Constitution,...the Nation does not admit prerogatives by blood nor by birth, it does not have personal privileges nor titles of nobility. All its inhabitants are equal under the law, and admissible in employment without conditions other than suitability. Equality is the basis of taxes and public charges. 6 Similarly, foreigners have the right to exercise their trade, business, and profession; to possess, purchase, and dispose of property; to navigate rivers and coasts; to exercise freedom of worship; to bequeath and marry pursuant to law, 7 without obligation of admitting citizenship, nor to pay extraordinary forced contributions. Regarding the principle of due process 8 (the right to access justice) the Argentine Constitution establishes that no inhabitant of the Nation may be penalized without a trial first, based on the law and courts that were established before the trial takes place. It further indicates that nobody is obligated to testify against him/herself, nor be arrested without a written order issued by competent authority. 9 Migration Law includes some innovations with regard to the rights of migrants. Of which, the following can be mentioned: recognises the right to migrate; 10 reaffirms equal treatment with nationals; 11 states rights that assist migrants, insuring their equal access to social services, public assets, health, education, justice, work, employment, and social security; establishes the right to be informed regarding rights and obligations; determines the possibility to

19 Country Reports Argentina / 9 participate or to be consulted on decisions related to the life and management of the communities in which they reside; establishes the right to family reunification; guarantees access to education and health, regardless of the migration status of the foreigner, with the understanding that the family is a necessary and important environmental continence for every migrant. The law sets the fundamental policy guidelines and establishes the strategic basis in migration affairs, in compliance with international commitments of Argentina in matters of migrant rights, integration, and mobility. 2.2 Nationality and citizenship The rules regarding nationality and citizenship are regulated in the national Constitution, laws 346, 16801, and 20835, as reinstated in effect by mandate of law 23059, Citizenship and Naturalisation, by means of which are declared null and without judicial effect the losses or cancellations of Argentine nationality and citizenship, provided for in compliance with the de facto Law 21795, and those incurred during validity of the de facto Law Those affected by these provisions recover their Argentine nationality and citizenship to full right. Acquisition of nationality and citizenship for foreigners Nacionality Citizenship ACQUISITION 1. By Birth 1. All Argentines born or to be born in the territory of the Republic. 2. The children of native Argentines that having been born in a foreign country who opt for the citizenship of origin. 3. Those born in legations and on warships of the republic. 4. Those born in the republics that were part of the united provinces of the Río de la Plata before their emancipation, and have resided in the territory of the nation expressing their will to be Argentine. 2. Naturalization 1. Foreigners older than eighteen years of age that reside in the Republic for two consecutive years, and express before federal judges of section their will to become so. 2. Foreigners that accredit before aforementioned judges to have provided, whatever the time of residency, some of the following services: 1. Performed with honesty, jobs of the nation or provinces, within or outside the Republic. 2. Served in the army, navy, or assisted in a war effort in defence of the Nation. 1. Native Argentines, by option or naturalized, that are eighteen years old, are citizens that may exercise political rights. 2. The child of a naturalized citizen who was a minor at the time of naturalization of the parent, and born in a foreign country, may obtain his/her citizenship credential from a federal judge due to the fact of having enlisted in the national guard within the period provided by law. 3. The child of a naturalized citizen in a foreign country, after the naturalization of the parent, may obtain his/her citizenship credential, if after coming to the Republic enlists in the National Guard at the age ordered by law. 4. Children of native Argentines born abroad that opt for citizenship of origin, must accredit before a federal judge their status as a child of an Argentine. 5. Foreigners that have complied with the conditions for naturalization will obtain the naturalization credential, to be issued by the federal judge of section unto whom they have made the petition.

20 10 / INTERNATIONAL MIGRATION IN THE AMERICAS SICREMI 2011 ISBN Nacionality Citizenship ADQUISICIÓN 3. Established in the country a new industry, or introduced a useful invention. 4. Be a railroad investor or builder in any of the provinces. 5. Be a resident of established colonies, or those hereinafter to be established. 6. Live or populate national territories along current borders or outside of them. 7. Be married an Argentine woman in any of the provinces. 8. Be a faculty member of any of the education branches or as teaching staff of industry. 6. Argentines that are 18 years old enjoy all the political rights bestowed by the Constitution and the laws of the republic. 3. By Option Children of native Argentines that having been born in a foreign country opt for the citizenship of origin of one or both parents. Must comply with legal requirements. EXCEPTION a) accused in the country or abroad, of a crime stipulated in Argentine penal legislation, until separated from the cause; b) sentenced for a crime, whether in the country or abroad, with penalty of deprivation of liberty, unless such penalty has been complied with and has elapsed five years since expiration of the penalty set forth in the sentence, or an amnesty occurs. * Article 3 of Law declares null and without judicial effect the losses or cancellations of Argentine citizenship stipulated in compliance with articles 7, 8, 11, 12, 13, and concordant of the de facto law 21795, and those incurred during validity of the de facto law Individuals may not exercise political rights in the Republic of Argentina if they have been naturalized in a foreign country, have jobs or honors with foreign government without the permission of the congress, are bankrupt due to fraud, nor those with a convicted sentence that imposes a defamatory penalty or death. Reinstatement of the exercise of citizenship will be decreed by law, by an electoral judge, before an audited review, provided that cessation of disqualification arises from the evidence had at the time of such provision. Otherwise, it can only be considered upon petition of the interested party.

21 Country Reports Argentina / Regulations for entry and stay The law establishes three categories for foreigners that enter the country: a) permanent residents; b) temporary residents; and c) transitory residents. With exceptions, the authority may grant an authorisation of precarious residency (residencia precaria), which will be revocable if the reasons considered for its grant are divested. 12 Entry into the country by foreigners that do not meet the requirements stipulated by law and its regulations may be authorised when there exist exceptional reasons of humanitarian nature, public interest, or compliance with commitments acquired by Argentina. 13 Types of residency 14 Permanent residency A permanent resident is any foreigner, who with the purpose of establishing him or herself permanently in Argentina, obtains from the National Office of Migration a permit that establishes them as such. Similarly, immigrants who are relatives (spouses, children, and parents) of Argentine citizens, natives, or by option, are understood as such, will also be considered permanent residents. Children of native Argentines or who are born abroad to Argentine natives are recognised as having permanent residency. Temporary residency Temporary residents are all foreigners who have entered Argentine territory under one of the following sub-categories: a) Migrant worker: an individual who enters to dedicate him/herself to the exercise of some licit, compensated activity, with authorisation to remain in the country for a maximum of three (3) years, extendable, with multiple entries and exits, and with a permit to work under a relationship of dependency; b) Person of independent means: an individual who with steady income from their own resources or licit income from abroad, stays in Argentina. They may be granted a residency term of up to three (3) years, extendable, with multiple entries and exits; c) Retiree: an individual who for services provided abroad receives from a government, international organisation, or private company, a pension in the amount that allows him/her a regular and permanent monetary income in Argentina. May be granted a residency term of up to three (3) years, extendable, with multiple entries and exits; d) Investor: an individual who contributes his/her own assets to perform economic activities of interest for the country. May be granted a residency term of up to three (3) years, extendable, with multiple entries and exits; e) Scientists and specialized personnel: an individual who is dedicated to scientific, research, technical, or consulting activities, hired by public or private entities to perform work in his/her specialty. May be granted a residency term of up to three (3) years, extendable, with multiple entries and exits;

22 12 / INTERNATIONAL MIGRATION IN THE AMERICAS SICREMI 2011 ISBN f) Athletes and artists: hired due to their specialty by individuals or legal entities that perform activities in Argentina. May be granted a residency term of up to three (3) years, extendable, with multiple entries and exits; g) Clergy of officially recognised cults: an individual with legal entity status issued by the Ministry of Foreign Affairs, International Trade and Culture, that enter Argentine territory to perform activities exclusively related to their religion. May be granted a residency term of up to three (3) years, extendable, with multiple entries and exits; h) Patients undergoing medical treatments: to treat their health issues in public or private health institutions, with authorisation to remain in Argentina for one (1) year, extendable, with multiple entries and exits. In the case of minors, disabled, or sick persons that, given the significance of their pathology, must remain with escorts, this authorisation will be extended to direct family members, a legal representative or guardian; i) Academics: an individual who enters Argentina by virtue of academic agreements executed between higher education institutions in specialized areas, under the responsibility of the contracting centre of higher education. Its validity will be for a term of up to one (1) year, extendable for an identical period each, with authorisation for multiple entries and exits; j) Students: who enter the country to undertake high school, tertiary, university, or specialized recognised studies, as regular students at officially recognised public or private establishments, with authorisation to remain in the country for two (2) years, extendable, with multiple entries and exits. The interested party must provide proof of enrolment at the educational institution in which he/she will study and, for further renewals, certification of his/her status as a regular student. k) Asylum persons and refugees: those recognised as refugees or asylum seekers will be granted authorisation to reside in Argentina for a term of two (2) years, extendable for as many times as deemed necessary by the authority in matters of asylum and refuge, addressing the circumstances as determined in legislation in effect on such matters; l) Nationality: citizens native to Member States of MERCOSUR, Chile, and Bolivia, with authorisation to remain in the country for two (2) years, extendable, with multiple entries and exits; m) Humanitarian: foreigners that invoke humanitarian reasons that justify a special treatment by the National Office of Migration; n) Special: those that enter the country for reasons not provided for in previous paragraphs, and considered to be of interest by the Ministry of the Interior (Ministerio del Interior) and the Ministry of Foreign Affairs, International Trade and Culture. Transitory residency Applicable to those that enter the country as tourists, passengers in transit, neighbouring border transit, international transportation crews, seasonal migrant workers, academics, those undergoing medical treatment, and those that invoke reasons that are deemed justified of special treatment by the National Office of Migrations.

23 Country Reports Argentina / Refugees In November 2006, Argentina adopted its first Refugees Act (Ley de Refugiados) or Law 26165, titled General Act for Refugee Acknowledgment and Protection (Ley General de Reconocimiento y Protección al Refugiado), which repealed the legislative framework in effect at the time. 15 Protection of refugees in Argentina is governed by the provisions of International Law and Human Rights, the Convention of 1951 on the statutes of refugees, and its protocol of This new law was enacted pursuant to the principles of no return, including prohibition of rejection at the border, non-discrimination, non-prosecution for illegal entry, family unity, confidentiality, most favourable treatment or interpretation of the human being, or the pro homine principle. Recognition of refugee status is applied both to the acknowledged refugee as well as to the claimant. 17 Article 1 of Law mentions that its provisions and scope must be interpreted and applied according to the principles and standards of the Universal Declaration of Human Rights, the American Convention on Human Rights, the Geneva Convention of 1951, and the New York Protocol of 1967 on refugee status, as well as all the stipulations or conventions applicable to Human Rights and refugees ratified by Argentina and/or contents of Article 75 paragraph 33 of the national Constitution, as well as asylum instruments in effect in the country. Determination of refugee status is a humanitarian and apolitical act. Recognition of such status does not imply, on behalf of the authorities, a judgment with respect to the refugee s country of origin. 18 With the objective to analyze and evaluate the asylum claims brought forth in the territory, the National Committee for Refugees was created (Comisión Nacional para Refugiados - CO- NARE). This is an inter-departmental entity composed of the Ministries of the Interior; Foreign Affairs, International Trade and Culture; Justice, Security and Human Rights; Social Development; and the National Institute Against Discrimination (Instituto Nacional contra la Discriminación - INADI). One representative from civil society and the United Nations High Commissioner for Refugees (UNHCR) participate, however, without the right to vote or voice opinions. 2.5 Regularisation of status One of the major changes established by the new Migration Act is the regularisation of immigrants. Article 17 specifies that, The State will provide what is conducive for the adoption and implementation of measures aimed to regularize the migration status of foreigners, which enables the Executive branch to create programmes to make it effective. The new law introduced, in the Argentine migration legislation, the criteria of a MERCOSUR nationality 19 for the entry of foreigners, establishing to that effect that a person only has to be a national of any Member State or Associate of MERCOSUR (Brazil, Paraguay, Uruguay, Bolivia, Colombia, Chile, Ecuador, Peru, and Venezuela) to be eligible for this new nationality. 20 In this spirit, and in the new law, were approved a series of standards aimed at regularising the status of persons residing in Argentina with irregular status, accepting and understanding that the obstacles in migration applications and formalities generate more irregularity. 21

24 14 / INTERNATIONAL MIGRATION IN THE AMERICAS SICREMI 2011 ISBN By means of Decree 836/2004, the National Programme for Normalization of Migration Documents (Programmea Nacional de Normalización Documentaria Migratoria) was created. 22 The purpose of this entity was to create a framework for new migration policies addressing the employment and integration of the immigrant population, regularisation of their migration status, 23 and respect for their human rights. This is aligned with international conventions and consolidates MERCOSUR regional policy. Along the same lines of Decree 836/2004, Decree 1169 of September 6, 2004 consists of a migration status regularisation programme for citizens from countries outside of MERCOSUR and its Associated States, who in fact resided within Argentine national territory on June 30, This measure favoured a great number of regularisation requests made by Asian citizens. 24 Furthermore, during this period, Argentina suspended the measures of expulsion or order to abandon the country, already dictated, firm, and consented, regarding foreigners whose migration status may be categorized within the terms of this current measure ( ). 25 As a second phase to this initiative, the National Programme for the Normalisation of Migration Documents approved Decree 578/2005 through which the emergency administration prorogued the aforementioned National Office of Migration and gave instructions to carry out the migration regularisation of foreigners, natives of MERCOSUR Member States and its Associated States. 26 This became known as the Patria Grande MERCOSUR programme and required joint work with the provincial states, municipalities and non-governmental organisations (NGOs). The key to this programme lies in the simplification of the regularisation process: once enrolled, the applicant receives a certificate of precarious residency with which he/she can work legally (in addition to study, enter and exit the country when desired, etc.); this is followed by a second phase in which temporary residency is processed (for two years), which can later be converted to permanent residency. The Patria Grande programme, unlike other regularisation processes, is not an amnesty; it does not have limited validity. Its purpose is as a State policy and will be permanently in effect for nationals of MERCOSUR and its Associated States that reside in Argentine territory, and for those who enter in the future Crimes associated with Migration Trafficking in persons On April 29, 2008, Law was enacted regarding the Prevention and Prosecution of Trafficking in Persons and Victim Assistance (Prevención y Sanción de la Trata de Personas y Asistencia de Víctimas). This regulation adopts the guidelines of the Palermo Protocol to prevent, suppress, and prosecute trafficking in persons, especially women and children, which, at the same time, responds to the United Nations Convention Against Transnational Organised Crime. Prior to this law, trafficking in persons was not classified as a distinct crime under Argentine penal law, but was punished under facilitating prostitution and servitude. 28 Article 5 of Law establishes the Non-Punitive principle, clarifying that the victims of human trafficking may not be punished for committing any crime that is a direct result of being the victim of human trafficking. Nor will any of the sanctions or restrictions established in the migration legislation be applicable to them if the infractions are a result of activities performed while victims of this terrible condition. The penal and procedural provisions of Title III of Law modify the penal code, incorporating articles 145 bis and 145 ter, and establish sen-

25 Country Reports Argentina / 15 tences of three to six years for trafficking in persons who are adults, and six to fifteen years in the case of minors. Migrant Smuggling Chapter VI of Title X of the Migration Act refers to crimes associated with migration. The law establishes sanctions against the promotion and illegal trafficking of people. It prohibits the entry and stay in national territory of foreigners with a record of trafficking in weapons, individuals, and/or drugs, or money laundering, or investments in illicit activities, as well as those having submitted false documentation to obtain immigration benefits for him or herself or a third party. The migration law establishes that he or she who engages or facilitates the illegal smuggling of people from, in transit through or to the Argentina territory will be sentenced to jail or imprisonment for one to six years. The illegal smuggling of individuals is understood as the act to perform, promote, or facilitate the illegal crossing of persons along the national borders with the purpose to obtain, directly or indirectly, a benefit. 3. TRENDS AND CHARACTERISTICS OF ARGENTINA S MIGRATION POLICY SINCE THE LATE TWENTIETH CENTURY TO THE PRE- SENT Conceptual framework: importance of the definition of the problem According to Charles Elder and Roger Cobb, policy issues are social constructions that reflect specific conceptions of reality in which always exists the possibility of multiple definitions regarding a problem. At the same time, definitions serve to frame subsequent policy options, and affirm a particular conception of reality; therefore, public policy issues are not precedent data, rather the result of definitions. 29 Wildlavsky (1979), on the other hand, indicates that issues are the making of men. Multiple conceptions always exist. There are no issues defined in a sole manner. A hallmark characteristic of recent Argentine migration policy is the profound ideological change in the definition and conceptualization of the migration issue that occurred with the approval of the Migration Act in December The new law goes from a restrictive policy, with a series legal obstacles that limited the entry and stay of immigrants, to that of an open policy, respectful of a person s human rights, given his/her status as such, and not based on national origin. In this sense, the new migration legislation seeks to facilitate access to residency and rights of immigrants, regardless of their migration status. Seen with historic hindsight, the most evident rupture constitutes the introduction of the human rights perspective, and subsequent abandonment of the national security doctrine 30 adopted by the previous migration regulations (Domenech, E., 2008).