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. 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 25871 in December 2003. 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 adopted by the previous migration regulations” (Domenech, E., 2008).
The path towards the new migration law
Current Argentine migration policy: history and changes to its conceptualization
Susana Novick (2005) analyzed the Argentine migration policy during different periods of government, and concluded in first instance that during the military dictatorship (1976 -1983), control and expulsion activities were prioritized without any kind of judicial involvement. In the year 1981, General Migration Act 23439 was enacted (also known as the Videla Act or or as the Military Act) where underlies the ideology of “national security doctrine”. Mármora (2004), on the other hand, states in that regard, that this law reduces to a minimum a migrant’s rights, including the obligation to report foreigners without the required documents to remain in the country. In addition, he affirms that with the return of democracy during the governments of Raúl Alfonsín (1983-1989) and Carlos Menem (1989 -1999), even though amnesties were decreed in 1984 and 1994 and new regulations to the Law were dictated in 1987, 1994, and 1998, it remained unaltered. Thus immigration policies continued to be restrictive. It was characterized by a greater concentration of power in the Ministry of the Interior, an increase in detention and expulsion of foreigners without any type of involvement or control by the Judicial Branch, and non-existent basic procedural guarantees. To this panorama add the requirement for immigrants to have work contracts to be able to perform profitable activities (when half of Argentine workers performed their jobs informally without any kind of documentation whatsoever), as well as verification by the authorities of certain facilities such as housing, demonstrating the restrictive spirit of the migration policy, where everything was aimed at the generation of obstacles to access legal residency (Novick, 2005).
The toughening of migration policy, especially during the second administration of Carlos Menem (1995-99), is explained in certain measure as a result of the surge of speeches against immigrants from neighbouring countries within the context of increased poverty, unemployment, and crime. Immigrants from neighbouring countries are frequently held responsible for economic and social issues that developed as a result of an exhaustion of a neo-liberal development model, which under arguments of economic efficiency did not adequately measure the social costs of its application.
At first it was indicated that the definitions of problems in public policies serve to frame subsequent political elections. Within this framework, the “logic” of restrictive policies can be understood in this period. Several government actors considered immigrants to pose a threat to the national labour force and public security, among other issues.Despite stricter migration policies, the National Congress proceeded with initiatives to create and put into effect a new regulatory law. This reform movement obtained political consensus to terminate the legislation of the military government. Diverse social actors, such as human rights advocacy NGOs, foreign community groups, the academic sector, etc. intervened in this movement.
Eduardo Domenech (2008) points out that from the beginning of the decade of 2000 there “start to appear traces of a reconfiguration of state speeches and practices regarding international migrations, inaugurating a discourse of inclusion based on the perspective of human rights, community citizenship, and cultural pluralism, vis á vis a rhetoric of exclusion predominant in the nineties.”
In December 1999, a bill is passed within the framework of the Commission of Population and Human Resources (Comisión de Población y Recursos Humanos) of the Chamber of Representatives. This initiative was adopted based on a bill presented by Representative Giustiniani, submitted in December 2001, and March 2003, in which is incorporated the opinion of different representatives of the Commission of Population, as well as the broad spectrum of social actors linked to the topic of migration. In that regard, Novick (2005) emphasizes “the detailed discussion of two topics: who was the authority that decided the expulsion of a foreigner – up until then practically in the hands of the Executive Branch without possibility of appeal, or an appeal from abroad ; and the topic of judicial recourses”. Finally, with the changes incorporated, the bill obtained consent by representatives and senators, and Law 25871 was approved in December 2003.
The discussion of the details of law 25871 included the following innovations with regard to immigration policy in Argentina: recognition of the right to migrate, and therefore, the guarantee by the State; the right to equal treatment as enjoyed by nationals; the right to due process in the event of detention or expulsion; the right to health, education, and family reunification; in addition to social, labour, and cultural integration, among others.
Some of the relevant considerations that explain the strong approval of the new migration law are: a) the increasing direction of the government towards a policy of promotion and respect of human rights consistent with civil society and countering an orientation towards concepts of security and control; b) a clear definition of a foreign policy of integration abroad through MERCOSUR, offering differential treatment by means of greater circulation and settlement advantages of common persons among which are the most vulnerable migrant groups.
Effect of the new law on regularisation of migration status
With the goal to regularise the status of thousands of immigrants, the National Office of Migration established on April 17, 2006, the National Plan of Normalization of Migration Documents to citizens of the Member States of MERCOSUR and Associated States, also known as Patria Grande. This is consistent with president Kirchner’s political orientation, in which regularisation of migration status is indispensable for the protection of immigrants, avoiding, in this manner, situations of abuse and violation of human rights.
The initiative’s success translated to a significant increase in settlement applications (table 1). Nationalities that received settlement (temporary or permanent) were Paraguayan, Bolivian, and Peruvian, which jointly represent 78.7% and 82.7 % of the total permanent and temporary settlements results, respectively. This result concurs with the Argentine migration reality, and the spirit of Law 25871.
Table 1 Total settlements initiated and resolved per year
Source: Argentine Report to the Continuous International Migration Reports in the Americas System (OAS – CIMRIAS). Argentine National Office of Migrations, 2009
Tabla 2 Settlements resolved by category for nationals of Paraguay, Bolivia, and Peru, 2004-2009.
|2004||2005||2006||2007||2008||2009||TOTAL||Porcentaje sobre el total de nacionalidades resuelto en la categoría|
|Paraguaya - Temporaria||883||1805||4387||27952||60169||51378||146574||37,14|
|Paraguaya - Permanente||5002||6377||4310||9488||26009||33867||85053||29,61|
|Boliviana - Temporaria||485||9185||9687||26136||38861||29455||113809||28,83|
|Boliviana - Permanente||2013||5447||8578||18434||29005||28980||92457||32,19|
|Peruana - Temporaria||486||7501||5384||12481||22814||17283||65949||16,71|
|Peruana - Permanente||4245||2368||4883||10877||13931||12382||48686||16,95|
Source: Preparation based on data of the Argentine Report to the Continuous International Migration Reports in the Americas System (OAS – CIMRIAS). Argentine National Office of Migrations, 2009.
The magnitude of the figures in both tables is evidence of the poor results of the restrictive migration policy driven by the General Migration Act of 1981, or the Videla Act, relegating tens of thousands of individuals to irregular migration status.
An essential step for implementation: regulation of Law 25871
Despite the success achieved with the change proposed by the new law, its regulations are still pending. This is essential for ensuring the new conceptualisation of the migrant as a subject of rights is implemented.
However, and despite this fact, its operational character made it applicable in a direct manner in the majority of its clauses. The National Office of Migration adopted a series of measures conducive to non-distortion of its spirit.
- Suspension of expulsions or orders to abandon the country regarding nationals of bordering countries: Provision 2074/04 DNM dictated on January 28, 2008.
- Nullity of all precautionary detentions or warnings that contain such measures, dictated by the National Office of Migration pursuant to powers granted to it in repealed Law 22439. Provision 17627 DNM dictated on April 23, 2008.
- Decrease of migration tariffs to be paid by foreigners that process their residency before the Argentine consulate: Provision 21085 DNM dictated on June 17, 2004.
The government of Cristina Fernández, in power since December 2007, has continued an open migration policy based on respect for the human rights of migrants in line with the policy of her predecessor, Néstor Kirchner (2003-2007).
The National Office of Migration created, through provision 37130/2008, a Consulting Commission for the Regulation of the Migration Act, 25871. This commission was made up of a broad spectrum of actors, both governmental and non-governmental, international organisations, and academics linked to the topic of migration , among others, the Permanent Assembly for Human Rights (Asamblea Permanente por los Derechos Humanos - APDH), the Legal and Social Studies Center (Centro de Estudios Legales y Sociales - CELS), the International Organisation for Migration (IOM), the United Nations High Commissioner for Refugees (UNHCR), the Argentine Catholic Commission Foundation for Migration (Fundación Comisión Católica Argentina de Migraciones - FCCAM), and the Latin American Centre of Migration Studies (Centro de Estudios Migratorios Latinoamericanos - CEMLA).
This regulation was approved and came into force on May 6, 2010, through Decree 616/2010.
In it were assigned responsibilities for implementation of the law to diverse state entities, such as the Ministry of the Interior, the National Office of Migration, and the National Office of Population, regarding aspects such as the establishment of general guidelines and criteria for population and migration policies and the safeguard of the right to equal conditions for foreigners and nationals. All organisations involved in the topic of migration are invited to propose plans and initiatives to attain the diverse goals sought by the law. For example, the Ministry of Education has stipulated measures to guarantee access to educational services regardless of an individual’s migration status; similarly the Ministry of Health has taken measures regarding access to healthcare services.
Assignment and compliance with these responsibilities will generate the need to revise and modify institutional standards and practices to reconcile them with the spirit of Law 25871, in addition to train and enable different operators related to the migration issue.
This is the last link in the chain of implementation of the new Argentine migration policy; a task that will not be easy given the conceptual shift that propels the new law, contrary to the restrictive policies applied during the last decades.
The new law and Argentine emigrants
Argentina experienced a process of emigration of qualified human resources during the military period (1976-1983). After the return to democracy, the phenomena stabilised until the 1990’s, when Argentine flows overseas began to increase again reaching its maximum during the 2001 political, economical, and social crisis. The difference now is based not only on highly qualified human resources, but also on young individuals with diverse educational levels.
Argentina is both a migrant receiver and sender; although immigration still outweighs emigration.
The new law acknowledges and highlights in its articles 102, 103, and 104, two aspects: the protection of labour rights of Argentines abroad by means of agreements with receiver countries; and duty-free exemptions for the entry of personal effects and other assets of those who decide to return after living abroad at least two years.
Next Steps: towards the creation of a follow-up mechanism to evaluate the effects of the new law
Argentina has made important progress with regard to migration policies based on respect and the guarantee of human rights. This important advancement was reflected when, in 2006, more than 800,000 persons submitted their settlement application to regularise their status.
Despite this fact, it is necessary to remember that the migration experience of an individual - in its broadest sense – does not end with the regularisation of his/her migration status, even though this event is a great initial step for the protection of his/her rights.
With this new law and its regulations, future research is needed to evaluate the implications and outcomes of its application. Some of the questions that need to be answered to evaluate the success of the law, for which the opinion of the immigrants themselves is essential, include:
- How is the immigrant’s integration experience with the new community?
- How is the job market?
- Do differences exist between salaries paid to nationals and foreigners?
- Does the school operate as an integrating agent, or does it reproduce situations of exclusion due to the child’s origin?
- Has the number of foreigners that make contributions to social security increased?
- Do they (immigrants) have access to health services?
- What is the quality of health services they have access to?
- What are their housing conditions like?
- In what measure did the new law and its regulations improve their quality of life?