The opening of a new migrant detention centre in Buenos Aires has drawn criticism from human rights groups that accuse the government of undermining Argentina’s progressive immigration laws.
In late August 2016, the administration led by President Mauricio Macri announced the opening of a new migrant detention centre in the Buenos Aires neighborhood of Pompeya. The agreement, signed on 19th August by national director of migration, Horacio Garcia, national security minister, Patricia Bullrich, and her Buenos Aires counterpart, Martin Ocampo, took effect on 1st September and will be valid for a term of four years.
The announcement of the centre, only the second of its kind in South America, was met with immediate backlash by local human rights organisations. Gabriela Liguori, general coordinator of the Argentina Commission for Refugees and Migrants (CAREF), referred to it as “a regression in terms of the logic of human rights.” Beyond some initial criticisms focusing on the lack of substantive communication and dialogue on the part of the government, migrant rights proponents such as Liguori are uneasy with the specific wording employed by the National Immigration Directorate (DNM).
According to the 19th August press release, the centre was proposed and created for the purpose of “combating irregular migration” and housing those individuals “infringing upon Law 25.871.” For Leah Tandeter, coordinator of politics and international justice at Amnesty International, it was the phrasing of the original announcement that “raised an alarm.”
She noted: “It was announced that the idea was to ‘fight migrants’ in conflict with the migration law… that affirmation is not what the law says. You do not deprive migrants of their freedom just because they do not obey the [migration] law.”
Perhaps acknowledging the fierce criticism it received on the part of both local and global human rights organisations, the DNM proceeded to edit the wording of the original press release on two separate occasions, before publishing a position clarification letter. Both the letter and the final version of the announcement were then removed altogether from the DNM website in late August.
To understand the basis for the “alarm” expressed by Amnesty and other groups, it is important to review the global context and historical origins of Argentine migration policy.
There are two predominant schools of thought when it comes to the implementation of national immigration policy in the 21st century: Libertarian and Securitarian.
Libertarianism dates back to the 18th century Enlightenment with scholars such as Wilhelm Von Humboldt and his influential ‘The Limits of State Action’. It was in works such as this that philosophers advocated for the inherent human right of freedom of movement, individuality, and a life free from State interference. Focusing on the principles of State security and border control, securitarianism is found at the opposite end of the political and philosophical spectrum.
In the post 9/11 world, the global migration agenda has shifted from migrant regularisation to terror prevention, national security, and the so-called global war on drugs. The most vivid example in recent memory of securitarian policy in practice is the European Union’s fractured response to the ongoing global migration and refugee crisis.
While securitarianism today functions as the status quo for the majority of first world economic powers (i.e. the G20), Argentina’s modern day migration policies have moved in the opposite direction.
Following its 19th century independence from Spain, Argentina implemented an open border migration policy and received an estimated 5m migrants between 1857 and 1920. Gradually becoming more restrictive through a series of military dictatorships and economic downturns, the securitarian approach peaked in 1981 with the execution of Law 22.439, also known as ‘The Videla Law‘. Named after military dictator Jorge Rafael Videla, the law impeded several constitutional guarantees pertaining to migration, including the right to seek a judicial remedy. Rather than focus on the regularisation and documentation of migrants, public resources were allocated for the identification and deportation of noncitizens.
Argentina’s securitarian stance began to shift in 2003 with the sanctioning of Law 25.871 and its inclusion of a comprehensive migratory rights provision. Article 4 of the law proclaims: “The right to migrate is essential and inalienable to all persons and the Republic of Argentina shall guarantee it based on principles of equality and universality.” This statement is rooted in the 1948 Universal Declaration of Human Rights, the foundational document for our understanding of contemporary human rights. Having risen to the level of customary international law, the declaration is binding on all U.N. member states and incorporates the key moral principles that: all human beings are born free and equal (Article 1), all human beings are equal before the law (Article 7), and the family group is entitled to protection by society and the State (Article 16(3)).
Law 25.871 came into force in 2004, and Argentina successfully achieved a complete reversal of the securitarian Videla Law. In 2010, with the implementation of decree 616/2010, Argentina set the global migration standard even higher by providing additional refugee protections, and further facilitating the application of Law 25.871. As Argentine law interprets migration to be an inherent human right, it emphasises the need for familial reunification, access to education and health care, and residency not predicated on employment. A recent government study shows that between 2004 and 2014, almost 1m foreigners were granted temporary status, and almost 900,000 were granted permanent residency.
Law 25.871 has been “celebrated and recognized at the international level” for what Tandeter calls “its human rights perspective and promotion of migrant regularisation.”
According to Télam, the State news agency, DNM sources have downplayed the significance of the centre, indicating that its purpose “is not in any way to criminalise immigration, but to have a space prepared to accommodate those who, for different reasons, are about to be deported, thus avoiding the need to keep detainees in the facilities of security forces in ports, airports, and border crossings.”
“It isn’t bad in and of itself to have a place where people who need to adhere to an expulsion order can be detained for a short time,” says Diego Morales, director of litigation and legal defense at the Centre for Legal and Social Studies (CELS). “But the State didn’t communicate that. The State communicated something different.”
While Law 25.871 does allow for the detention of undocumented migrants, it is a legal mechanism applied only in the rarest of cases in which 1) a migrant refuses to accept regularisation, 2) he or she refuses to leave the country voluntarily, 3) there is a judicially validated expulsion order, and 4) all judicial remedies have been exhausted. Detention, if applicable, is limited in duration to 15 days pending removal, and is reserved specifically for those exceptional cases in which regularisation cannot be achieved.
In other words, an irregular migratory status alone is not a detainable offence. The most common justification for the enactment of detention proceedings is a state of migratory irregularity that intersects with an active record of criminal violations. Other cases are rare, as Morales notes: “When we looked into the number of people who have been detained this year in order to comply with an order of expulsion, we found that they were just 22 people. That is the statistic, for the whole country. To create a jail for 22 people… who is going to go to that jail? That is the question.”
Moreover, Morales says that a centre designed to combat irregularity is inherently “contradictory to the law” as it declares that “the irregularity of migration is something to be solved by the State, not the migrant.
“You can never conclude that a person should be expelled if they are not offered different alternatives to resolve their migratory status. That is, I will give you 30 days to inform me whether or not you have kids, if you have a job, if you study, if you are from a country associated with Mercosur… the State needs to resolve the situation. Regularisation cannot be a reason to expel someone.”
Understanding the stringent State burden that must be met for migrant detention and expulsion (and the rarity of its occurrence), the allocation of public resources for a migrant detention center appears odd. The government, says Morales, “is responsible for giving them options… not a jail.”
There is a fear among migrant rights activists in Argentina concerning the perplexing dualism displayed by President Macri in his approach to migration. On the one hand, he is applauded for his international commitment to Syrian refugee resettlement, and, on the other hand, is denounced for associating migration with security and border control. It is the latter of these two polarities that is the real cause for worry among human rights proponents such as Diego Morales, Leah Tandeter, and Gabriela Liguori.
Their concerns run deeper than the sanctioning of a single detention centre that, at the time of writing, has yet to open its doors. They trace their roots to the “Parque Indoamericano” riots of 2010, when as Buenos Aires mayor Macri blamed an “out of control” immigration policy that meant the city “had to deal with the housing problems of neighbouring countries.”
According to Liguori, Macri’s government has virtually scrapped the “abordaje territorial” program, which focused on bringing resources to migrants living in “poverty-stricken and densely populated neighbourhoods.” Acting as a facilitator, State officials would provide migrants with material resources, and even truck them to local centres to streamline the documentation process. In what Liguori calls “one of the most symbolic issues” of the Macri migratory policy shift, the same trucks that were once used to help facilitate migrant regularisation are now used in operations to “control the right to stay”.
State security forces have recently placed intense focus on the areas of Once and Constitucion, primarily looking into the irregularity of Chinese migrants. This focus is reflected in the Twitter handle of the DNM, as migrant raids are now documented via the “hashtag” #ControlDePermanencia, and accompanied with photographic evidence of the operations.
When reviewed within the context of other recent human rights criticisms directed at the Macri Administration, this securitarian shift in migration strategy paints the picture of a country experiencing a significant evolution in State policy. Just how far this new policy will go is yet to be determined.