The latest report issued by the Observatory of Migration Policies of the Silva Henríquez Catholic University warns that the new Migration Law, approved last year after several legislative discussions, leaves key spaces for the discretion of the officials in charge.
One of the most relevant points mentioned in the study refers to Title IV of the law referring to the “Migratory Categories”, which indicates what are the elements to recognize a precarious situation in the migrant and, in turn, those tools so that he can advance and overcome the initial state.
According to the analysis, the law does not establish mechanisms to overcome this exclusion, mainly because they are transferred to the regulations or subordinated to the migration policy that the executive will define according to circumstantial criteria. So the path of overcoming conditionality and precarious legal status will be subject to the determinations of the administrative authority, which entails the risk that temporality, transience or any of the forms that precarious status takes will become a dead end.
In line with the above, the regulation that will have to be implemented on the basis of the new legislation is referred to in 18 articles, 11 of which are directly related to the definition of migratory categories. It is important to highlight this factor given the importance that the law attaches to this administrative instrument has its greatest impact on the institutionalization of a framework of action so that the government of the day defines, by virtue of political criteria, the conditions for migrants to overcome precarious status, or on the contrary remain trapped in it in the long term.
These 11 articles will be defined mainly to the extension of their stages, the periods of validity of documents, and the criteria for renewal and revocation of authorizations. This implies that it is in the regulation that fundamental issues will be resolved to move from temporary status to permanent residence.
“Transferring to the regulation the central elements for defining the duration of migratory categories implies in practice confronting migrants with a permanent hoizonte of uncertainty. They will not know when entering the country how long they will be on a temporary visa or under what conditions they will be able to opt for a permanent residence, being subject to the regulation those deadlines can be modified as the administrative authority determines at any time, “says researcher Eduardo Thayer on the main conclusions of the bulletin
Uncertainty and precariousness
Article 79 of the Act, for example, provides that the regulations may determine the conditions under which the permanent residence permit may be surrendered after 48 months of temporary residence, doubling the time established in principle for accessing that permit.
This potential extension opens up the possibility for temporary status to become a long-term category for migrants. “This implies, as we well know, precarious access to private and public services, difficulties in renting homes, changing from one job to another, or accessing working conditions equivalent to those of nationals or foreigners with permanent residence permits,” says the specialist.
The permanence in this temporary status also installs uncertainty as a daily horizon for the people subject to it, not only in relation to the possibility of overcoming that status, but of going back to it once it has been overcome.
On this point, the Committee for the Protection of All Migrant Workers and Their Families, which met on April 16, 2021, urged the Government of Chile to draw up the regulations so that the Law enters into force as soon as possible in order, among other reasons, to narrow this space of uncertainty and vulnerability of migrants.
“It is important to point out in this regard that the publication of the regulation, which has one year to be implemented after the law has been approved, will only partially or temporarily end this uncertainty, since since the mechanisms for establishing a certain exit from legal status are not enshrined in the law, the action of the competent administrative authority may establish modifications to these mechanisms as defined by the political criteria that are imposed in the field of migration,” argues the studyIo.
Thus, in one administration it could favor the overcoming of the temporary condition in the short term, in another it could be reversed through the administrative route with the same discretion, since modifications of this type do not have to be approved by Congress.
