Prospects for International Migration Governance

Venezuelan immigrants in Roraima: provisional measures for an indefinite humanitarian crisis

By Laura García-Juan

Since Brazil’s new Migration Act of May 2017 and Decree 9199 regulating its implementation of 21 November 2017, the flow of Venezuelans to the border state of Roraima in Brazil has been continual. The new Law does not specify the requirements for a humanitarian residence permit, but leaves the question to be decided at a later date. Accordingly, on 16 February 2018, three acts of the executive branch were published in the Official Gazette of the Union of Brazil. These were supposed to remedy this situation but they have further diminished the hopes of more than 40,000 Venezuelans in the Roraima capital of Boa Vista.
The three acts are as follows:

• Provisional measure No. 820, which provides for emergency assistance measures for the reception of people in a vulnerable situation deriving from the migratory flow caused by the Venezuelan crisis;
• Decree No. 9285, which recognizes vulnerability of migrants fleeing the humanitarian crisis in Venezuela;
• Decree No. 9286, which defines the composition, competencies and operating rules of the Federal Committee of Emergency Assistance for the reception of vulnerable migrants.

A brief analysis of these texts leads those with knowledge of Brazilian migration law and regulatory compliance to consider the following scenarios: either these are mere statements of good intentions, and they will not be effectively developed, or Brazil is about to become the world’s leading power in terms of human rights guarantees and protection for migrants.

This second scenario is difficult to imagine, given that the Migration Act has been devoured by an implementing Decree that contradicts the very law that it regulates. Some provisions contained in Decree 9199 seriously affect Brazilian migration governance, since they imply involvement from the judicial authorities along with the ministerial, police and intelligence actors. This means, for example, that the position taken by the courts will be decisive in a migration system that now allows international immigrants with a pending expulsion order to be imprisoned.

Returning to the provisions published on 16 February, the lack of precision in the statements and definitions leaves the construction of migration governance in Brazil up in the air. There is no compelling political, economic or social justification that would support the use in the three texts of the term “migratory flows”, a generic expression that creates uncertainty. The same can be said of the fact that all three indicate that the target group of the provisional measures are “the people in a situation of vulnerability deriving from the migratory flow caused by the humanitarian crisis”. No reference is made in any of the three cases to international migrants, refugees, internally displaced persons, asylum seekers or any other group requiring international protection. None of the texts distinguishes between forced or voluntary migrants, for, say, economic, work, family, education or health reasons. If we look at the meaning of the phrases in quotation marks, these definitions include all persons who are in any of the aforementioned situations. All of them, without distinction.

Meanwhile, the objective of the assistance measures (at the federal, district and municipal levels) is “to articulate integrated actions aimed at people, nationals or foreigners, that are part of this migratory flow”. This expands ad infinitum the number of individuals that the corresponding government authorities should take care of, and generates an uncertainty that could lead to chaos. Besides, it is difficult to demonstrate reliably whether someone (national or foreign national) is part of the migratory flow from Venezuela to Roraima or simply “passing through”.

In addition, the definitions given for “situation of vulnerability”, “humanitarian crisis” and “social protection” are too broad. This means that virtually anyone might think that they will be accepted and included in the assistance programs. In addition, these programs extend to public policies related to social protection, health care, educational activities, professional training and qualification, and human rights guarantees, among others.

All economic, political and social indicators point to the fact that the Venezuelan situation is not temporary, but that it will continue indefinitely. President Temer’s great mistake has been, as the main architect and the person ultimately responsible for migration governance in Brazil, to treat the migratory flows of Venezuelans as something transitory. This failure to get to the heart of the matter from the outset undermines the whole initiative. Clear evidence of this is the fact that neither provisional measure No. 820 nor Decrees 9285 and 9286 include the allocation of economic resources. On the contrary, the effective implementation of the planned actions depends on an available annual budget and finances, which raises still more questions. Where will this budget come from? Which department will be responsible for each budget item? How will the competencies be distributed? How will the priorities be set?

This idea that the migratory flows are a temporary situation, analysed together with other factors, leads us to the following conclusions:
First, this flow from Venezuela has lasted for several years already, yet none of the texts establishes conditions, additional criteria or deadlines for entering Roraima or for leaving Venezuela. A realistic norm should limit the reception measures to people who meet certain verifiable requirements. Otherwise, it could boost the number of men and women who believe that they are entitled to such assistance, potentially triggering competition for resources, xenophobic attitudes and social upheaval.

Second, allegations of human rights violations must be determined by a judge through a guilty verdict, and cannot hinge on an arbitrary decision of a public official or an NGO employee. Thus, the broad recognition of the situation of vulnerability contained in Decree 9285 is not a trivial issue, since it is a legal act that activates certain “rules” of international human-rights law. This recognition places Brazil in the spotlight of the international organizations that will monitor compliance.

In view of these considerations, it seems that the provisional measures announced are mere declarations of good intentions which will not be effectively developed. And this brings into question the very meaning of migration governance in Brazil.

The views expressed in this article belong to the blog’s author and do not necessarily reflect the editorial policy or the research done by the MIGPROSP team.

About the author

Laura García-Juan holds a Ph.D. in Human Rights, Democracy and International Justice from the Human Rights Institute of the University of Valencia (Spain), and a Masters in Development Cooperation. She is a jurist and a researcher in human rights, public policy and European Union Migration Law. She has collaborated with the University of Valencia and other Spanish higher education institutions, and exercised as a lawyer specializing in immigration law at her own law firm (1995-2015). She is currently Associate Professor and Head of Research at the Faculty of Law and Political Science of the Universidad Pontificia Bolivariana in Medellín (Colombia).

Brazil´s Migration Governance: Hidden Actors, the New Law and the 2018 Presidential Elections

By Diego Acosta, Marcia Vera Espinoza and Leiza Brumat

Brazil, the largest country in Latin America and the ninth largest economy in the world, has begun 2018 with a good deal of political uncertainty. Following his conviction for corruption, now being appealed, former President Lula da Silva – a well-known advocate of migrant’s rights – might not be able to stand in October’s Presidential election. Jair Bolsonaro, a presidential contender from the far right, who was a vociferous opponent of the 2017 migration law, and an admirer of Trump, is, meanwhile, second to Lula da Silva in the polls. The upcoming election will not only shape Brazil’s political future, it will also have important consequences for migration governance in the country. This follows an eventful 2017, characterised by both change and retreat in Brazil’s migration policies, the emergence of new actors and the return of old security agendas.

Brazil has a strong immigrant tradition. But only 0.3 percent of today’s population are foreign residents. The country amended its migration law in 2017 and the new Law, which entered into force on 21 November 2017, derogated the previous 1980 Act that had been adopted under the military dictatorship. Despite the fact that the current Brazilian President, Michel Temer, vetoed, at the last minute, some Articles, the law was widely praised. It followed the rights-based approach that had been advocated in the region since the turn of the century, and which had also led to new laws in other South American countries. The new law, approved by an overwhelming majority in Parliament, was put together through a participatory process: the ministries of Justice, Foreign Affairs and Labour, the federal police, as well as civil society and academic experts were all involved.

However, on 20 November 2017, the day before the entry into force of the new law, the Government officially published Decree 9.199 regulating the law’s implementation. The Decree was largely the work of the Executive and there was little room for input from other actors. The outcome was an inconsistent, contradictory text which breaches both the new migration law and the 1988 Constitution. Three examples will suffice to exemplify this, but also to highlight the variety of actors and agendas affecting migration governance in Brazil and its expression in its legislative framework. First, the Decree contradicts the principle of the non-criminalisation of irregular migration, enshrined in the Law, by making it possible to imprison undocumented migrants pending their expulsion; something also prohibited by Brazil´s Constitution. It is here that Tribunals emerge as central actors in the legal architecture of migration governance. Indeed, in December last year, a Federal Regional Tribunal in São Paulo issued an injunction against the imprisonment of a non-national awaiting expulsion. Second, the new implementing Decree does not specify the conditions under which non-nationals might be granted a humanitarian residence permit – one of the central tools in Brazil´s migration governance in the last decade. Rather, it leaves this open to be decided at a later stage by the Ministries of Justice and Public Security (equivalent to the Ministry of Interior in other jurisdictions), Labour and Foreign Affairs. As such it shies away from one of the main raison d´être for an implementing Decree, namely regulation of the procedure and rights of those obtaining different types of residence. Thirdly, and crucially for our analysis, the Decree grants extensive powers to the Federal police in numerous areas affecting the admission, residence and expulsion of non-nationals.

The new Decree exemplifies a fundamental shift in political and power dynamics within state actors, a shift that will profoundly affect migration governance. The MIGPROSP team conducted more than twenty interviews with key actors in July 2015 and then, again, in August 2017. Our last visit coincided with the moment when the migration implementation regulations were being discussed. Our interviews offer insights into the political dynamics shaping Brazilian migration governance under President Temer. Much as is happening in Argentina, state actors with a security agenda – in Brazil the Federal Police, Ministry of Defence and the Cabinet of Institutional Security of Presidency – seem to be (re)gaining the upper hand.

One of the big pressures was national security concerns and this influenced the vetoes in the [migration] law. We had this discourse saying that terrorists and traffickers will come to the country. This became a big pressure. Our system includes the Federal Police, the Ministry of Defence and intelligence bodies. All these were against some of the points in the law, generating great resistance. (Parliament Advisor, Brasilia)

Interviewees also mentioned the salient role of the ‘Casa Civil’ (Chief of Staff) – an organ close to the Presidency. Casa Civil was never mentioned as playing any role in migration governance during our interviews in 2015. By contrast, in 2017 interviewees refer to it as being the ‘last word on migration issues’:

The Ministry of Foreign Affairs and the Ministry of Labour are not subordinate organs of the Ministry of Justice. Within the administrative sphere they have the same degree of importance and responsibilities. Therefore, situations will certainly occur in which the understanding and decisions between these organs will be divergent. And the Casa Civil is superior to all ministries and is the organ that is going to decide the best interpretation (Civil Servant, Brasilia).

According to some interviewees, the emergence of these new ‘hidden actors’ in migration decision-making did not happen in a political vacuum. Rather, it was the result of instability in the Ministry of Justice, which suffered from the reshuffling of key roles, as well as the weakened role of the National Migration Council (CNIg), based in the Ministry of Labour and once the key source of migration administrative regulations. These “hidden actors” played a crucial role in lobbying in favour of the Presidential vetoes for the 2007 Migration Law. One interviewee stated how in the draft law there was initially a ‘non-written’ agreement about the responsibilities that each institutional actor would have, something that was going to be consolidated in written form in the Decree laying down the implementation regulations. However, the vetoes produced a new power struggle over the Decree, “to show who within the government has the power to pass their own agendas. The agreement that previously prevailed no longer exists” (NGO Official, Brazil).

The 2018 Presidential and Parliamentary elections (two-thirds of the Senate seats and all the Camera of Deputies seats are up for grabs) will affect key legislative initiatives currently under discussion in both Cameras on the political rights of foreign nationals in domestic elections and on the regularization of undocumented migrants. Brazil’s elections also will shape the extent to which the new “hidden actors” described above continue to play a central role securitizing the migration policy-making agenda. This political scenario is coupled with some pressing challenges such as increasing Venezuelan displacement, which is being labelled as a “refugee crisis” by the media and some political actors. These current developments will be determinant in migration governance in Brazil in the years to come.

Environmental Migrants and Climate Change in South America

By Vanina Modolo

Environmental migration has received increased attention from policymakers and other stakeholders, academics, not to mention the public in general, due to irrefutable evidence surrounding climate change and its impact on human mobility. South America is considered one of the regions most vulnerable to the effects of climate change. This is the result of its biodiversity, rapid urban development, inequality in income distribution and the stark division between rural and urban centers. Indeed, the IOM launched a study in November that explores the link between migration, environment and climate change in five South American countries. This study concluded that in targeted communities, there are permanent and/or transitory migratory movements due to the intensification of extreme events caused by climate change.

The research was carried out in five selected communities of South America. Lujan, a city in the outskirts of Buenos Aires, Argentina, is highly vulnerable to floods. In spite of this, permanent mobility is minimal and it mainly affects those with limited resources. Most people living in the town temporarily move to stay with friends or relatives during floods. In Brazil, an alternation of droughts and floods has led to significant migration. As a consequence of the loss of harvests and houses, the closure of shops and the lack of contingency policies, people in Rumo Certo, a community in the State of Amazonas, had to leave to nearby communities. Over 1,000 families have moved  to different places within the State in the last ten years. In Monte Patria (Chile), frequent droughts, combined with significant flaws in water provision, help push people to migrate to other parts of Chile. Around 15 per cent of the population of Monte Patria has migrated to mining areas in Northern Chile. In Tacamocho (Colombia), recurrent floods and erosion (worsened by climate change) have led to the significant emigration of particularly the young, and of families living near the Magdalena River. Some families have moved to safer areas within the same community, others have moved to neighbouring communities such as Córdoba, the main city in that municipality, or to other cities such as Barranquilla or Cartagena. In Santa Lucía de Chuquipogyo (Ecuador), damage is caused by lahares (a mixture of mud and melted snow), which represent a significant danger to human lives, assets, infrastructure and productive lands. Nearly 10 per cent of the population, who tend to make their livelihood through agriculture and cattle breeding, have had to move permanently to urban centres. Other dwellers prefer to temporarily move to Guano, the main city in that municipality, or to Riobamba.

Fieldwork in these communities allowed us to confirm that most dwellers directly affected by extreme climate and environmental changes are willing to move, on a permanent basis and in the framework of a relocation plan: they go to safer areas in their own state, province or region. In some cases, migration can act as an adaptation strategy to climate change. Another fundamental aspect observed during fieldwork was the active participation of women, at the same level as men. They took part in the identification of needs, and in the search for collective solutions to problems linked to extreme climate events, as well as to potential displacements arising from these situations.

The study also confirmed an important deficit in available information about the causes and the magnitude of population movements caused by extreme climate changes in South America. According to the study, there is only very limited coordination between the research generated by academics, and the decisions made by public institutions while managing migration and environmental topics. Another important conclusion is the absence of entities or organizations in the five countries involved, engaged in the formulation and implementation of comprehensive public policies for population, migration and climate change.

The authors of the study also made several recommendations, including the creation of a Regional Committee on Migration and Climate Change to develop policies on risk management, adaptation and mitigation measures from a gendered perspective in South America. This Committee would be designed to implement early warning programs and to assist displaced population groups in extreme climatic events. The study also recommends the generation and consolidation of multilateral and/or bilateral legislation and agreements. These would safeguard the rights of environmental migrants, as well as supporting research that continues to provide evidence on the effects of migration, environment and climate change factors in the region.

In order to cope with increasing human mobility from environmental drivers, it is essential that there be more research to better understand the linkages between climate change and migration. Efforts should be made to mitigate pressures to migrate, to reduce disaster risks and/or planned relocation as an adaptation strategy. Many people affected by climate change are forced or decide to migrate within or across international borders. In this case, the IOM would identify the key task to be facilitating safe, orderly and regular migration.

The views expressed in this article belong to the blog’s author and do not necessarily reflect the editorial policy or the research done by the MIGPROSP team.

About the author

Vanina Modolo holds a Ph.D. in Social Sciences from the National University of Buenos Aires (UBA), Argentina, and a Masters in Development and International Aid from the Complutense University of Madrid, Spain. She has extensive experience doing research, having been a fellow for several years of the Argentinian National Council of Scientific and Technical Research, based at the Gino Germani Research Institute of the UBA. Currently, she is a Researcher and Migration Analyst at the Regional Office of IOM in South America.

@ModoloVanina

Migration Governance in Uruguay: An “Adaptive” Approach or Something More?

By Simca Simpson Lapp

At the beginning of November, Uruguay hosted the South American Conference on Migration (SACM). The Conference is the principal forum for consultation and non-binding governmental dialogue on migration in the region. Uruguay’s pro tempore presidency provides an apt context for reflection on the development of its own policy framework for immigrant inclusion and integration in recent years. IOM Deputy Director Laura Thompson recently described this policy trajectory as one “that has adapted” to changing migration flows. But, more specifically, Uruguay’s process of policy adaptation has involved both the development of a comprehensive rights-based legal framework, and a somewhat piecemeal approach to its implementation.

Uruguay has a reputation for progressive politics in a number of areas, from its internationally-lauded law guaranteeing labour rights for domestic workers (2006) to the legalization of cannabis (2013). However, its migrant rights legislation has until now garnered little attention on the international stage. The country received significant flows of European migrants in the first half of the 1900s, but maintained a negative net migration rate during much of the second half of the century. In the past decade, its migratory context has nevertheless undergone a series of normative and substantive transformations. The current framework governing migrant rights in the country is compromised mainly of the 2008 Migration Law (18.250) and the 2014 Permanent Resident Law (19.254), which brought Uruguayan law into accord with a number of international treaties and regional policy aims.

This framework was constructed in reaction to several significant trends, including: a) a regional paradigm change in migration governance that led many states to overhaul restrictive migration decrees in favour of rights-based migration laws; b) the advancement of a MERCOSUR free-movement agenda; and c) a partial reversal of decades-long emigration flows coupled with substantial increases in immigration in recent years. Changes in Uruguay’s net migration balance are considered to have principally been a result of the economic recovery following the country’s 2002 banking crisis. However, an international reputation for “vanguard” policies may have played a role in making the country of under 3.5 million a desirable destination for intra-regional migrants. These policies reflect the consolidation of social and economic rights under the successive Frente Amplio (FA) presidencies of Tabaré Vázquez and José “Pepe” Mujica since 2005.

Recent migration trends have included both more historically-salient flows from Argentina, Brazil, Bolivia, Chile, Paraguay and Peru, as well as newer flows from Colombia, Venezuela, Cuba and the Dominican Republic. Citizens of all except the last three states have rights to permanent residence in Uruguay, given their membership or associated state status in Mercosur. Furthermore, although Venezuela was suspended indefinitely from the sub-regional trade bloc in August 2017, a visa requirement has not been imposed on Venezuelan nationals and applications for permanent residency continue to be processed.

On the whole, the Uruguayan state’s response to these broad transformations has been rights-based rhetoric and legal guarantees based on such principles as equality and non-discrimination, with a piecemeal approach to rights implementation. The granting of permanent rather than temporary residency to MERCOSUR migrants upon arrival in Uruguay is one legal guarantee that exemplifies this dynamic. At SACM 2017, the approach was recognized as “exemplary”. However, there have been gaps between the “rapid” processes once advertised on government websites and delays of up to a year in securing appointments to ultimately process permanent residency applications. Although there is some evidence that these outcomes are improving, they are broadly indicative of implementation gaps in the overall process of providing substantive rights guarantees.

The case of non-Mercosur Dominican migrants also demonstrates the adaptability of immigration policies but also gaps in the fulfillment of migrants’ broader social rights. Uruguay imposed visa requirement for citizens of the Dominican Republic in 2014 following the arrival of up to a few thousand migrants, some of whom were victims of human trafficking. At the municipal level in Montevideo, access to decent housing for these and other recent migrants has been a significant concern. Many begin their stay in unregulated pensiones (hostels) near the city centre in very precarious conditions. Others were left awaiting assistance from the Ministry of Housing after their informal settlement on the outskirts of the Capital was uprooted by the Intendencia (City Government).

Another example of ad hoc migration governance was Mujica’s humanitarian bid to receive a number of former detainees upon their release from Guantanamo Bay in 2014. Despite the hopes of assisting and promoting the integration of this group of migrants, the lack of a substantive infrastructure for migrant services and integration and the purported denial of family reunification requests helped frustrate an already complex initiative.

As these cases demonstrate, some recent migrants who have come in pursuit of the “Uruguayan dream” have found an infrastructure of inclusion that is still very much “under construction”. Migration governance in Uruguay is both an example of the capacity of the state to adapt to changing dynamics, and indicative of the extent of the capacity building required to implement a comprehensive migrant rights framework.

These national developments play out in a regional context in which migration governance has been described as being “in transition” and national conditions may trump other factors in determining policy implementation. Nonetheless, the SACM documents continue to employ rights-based language in addition to emphasizing the provision of “regular” migration channels. Thus, whether or not immigration flows to Uruguay continue at the same rate in the coming years, the Uruguayan experience may provide lessons for how institutions can adapt to bring migrant rights from legal norms into everyday realities. The establishment of a National Migration Council in 2008, with representatives across various government ministries, has been one of the noteworthy developments in this process. In fact, one of the central lessons may be that adaptability alone will not suffice to fulfill the rights of migrants. Looking forward, the true test of effective governance in this changing migration context might prove to be establishing and extending a proactive approach and working across areas of rights practice.

The views expressed in this article belong to the blog’s author and do not necessarily reflect the editorial policy or the research done by the MIGPROSP team.

About the author

Simca Simpson Lapp is a PhD Candidate at the School of Politics and International Relations at Queen Mary, University of London. She has undertaken fieldwork in Montevideo and Buenos Aires for her doctoral project on “Realizing Domestic Workers’ Rights from Institutionalization to Implementation: The Role of Labour, Care and Migration Rights Regimes in Argentina and Uruguay”.

@Simca Simpson

The flaws of the ‘Rome Plan’, promised policy solution to the migration problems in the Mediterranean

By Luca Lixi.

Since the Central Mediterranean route became the main source of irregular arrivals by sea to the EU much political energy has been spent on how to solve the problems arising from the uncontrolled movement of irregular migrants. So far, little progress has been made in developing a humane and medium-long term plan, which protects migrants as well as looking after the interests of the EU. It is against this background that the European Stability Initiative (ESI) has developed a ‘Rome plan’ for a credible and sustainable asylum and migration policy in the Mediterranean. Gerald Knaus, director of ESI and the architect of the (in)famous EU-Turkey deal, wants, through this plan, to make the case to ‘take-back realism’. He intends, in fact, to develop a strategy that can put together principles, tools and interests. Given the paucity of proposals for realistic strategies that guarantee the EU’s values whilst also being politically implementable, this strategy should be welcomed as a contribution to debates on sustainable and humane migration policies. In this paper, however, I criticize some shortcomings of the ‘Rome Plan’. I argue that, overall, this strategy does not offer a viable alternative to the status quo as: 1) it fails, yet again, to give adequate space to the interests of key stakeholders, namely African countries; and 2) it is framed by a narrow and simplistic narrative that understands migration as being driven by the ‘pull factor’, created by the possibility of settling irregularly in Europe. I conclude by suggesting that, while it is important to foresee a plan that also includes elements such as return with Third Countries (TCs), there is no shortcut to this. Cooperation partnerships need to be strengthened with TCs keeping in mind that wins and losses should be equally distributed between all stakeholders involved.
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Migration Governance in South America: Where is the region heading?

By Marcia Vera-Espinoza, Leiza Brumat and Andrew Geddes

Migration governance in South America seems to be in transition. Following recent interviews with key actors in in Argentina, Brazil, Chile and Ecuador as part of the MIGPROSP project we identify three tendencies in migration policy: ‘retreat’, ‘inertia’ and ‘change’. Together, these tendencies suggest that policy development and change in South America is unlikely to take the form of a unidirectional ‘tide’ be it liberal or illiberal, but will rather be non-linear and dependent on domestic conditions of governance and governability that shape how rhetorical commitments ‘hit the ground’. These conditions can include the state of the economy, but also other critical factors such as changes of government and political will. Read More …