Extending and restricting the right to regularisation: lessons from South America

ABSTRACT

This article explores how South American politicians rhetorically justify extending and restricting irregular migrants’ right to regularisation. Since 2002, the region has gradually established the right to regularisation before expulsion, creating norms and frameworks through which the opportunity for regularisation is the expected state response to irregular migration, rather than exception. Despite these innovations, many South American politicians have worked to undo some of these protections, particularly as migrants fleeing the political crisis in Venezuela overwhelm state capacities to administer these rights to mobility and regularisation. The result is an uneven and fluctuating patchwork of migrants’ rights to mobility in South America. How do politicians justify their work to extend and restrict this right to regularisation? Analysis of South American politicians’ justifications of these shifts reveal that, when extending the right, politicians prioritise the rights of the individual migrant, and claim credit for the capacity of the state to manage and extend those rights; when retracting the right to regularisation, politicians demand that migration policy serve state interests. In the South American context, regularisation programmes are a flexible and powerful policy tool, offering politicians problematic power to make and unmake this right to mobility.

KEYWORDS:

• Regularisation
• governance
• South America
• irregular immigration
• migration policy

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1 In this article, I use state categories, as defined by the state migration apparatus. Extensive research on the conceptual limitations the legality-illegality divide - see, among others, Ngai (2004), Menjívar (2006), Kubal (2013)- and on the ways that using state categories problematically reinforces the boundaries and logic of the nation-state - see, among others, Wimmer and Schiller (2002), Dahinden (2016)- documents the limitations of these categories. Here, I use this understanding of irregularity to interrogate when, how, and why politicians in South America change these state categories defining regularity, irregularity, and access to either category.

2 For additional details on regularisation programmes, particularly as implemented in the European context, see Apap, De Bruycker, and Schmitter (2000), Maas (2010), Brick (2011).

3 See Acosta Arcarazo (2018, 132–133) for a discussion of regularisation programmes the region before 2002. Migration was not an early priority when Mercosur was created in 1991 with the objective of promoting the ‘free movement of goods, services and factors of production between countries.’ It gradually entered into conversations when ‘factors of production,’ in the form of labour migration, inhibited the movement of goods and services. Countries primarily debated and implemented migration policy domestically and unilaterally in the 1990s. Increasing migration gradually escalated into a ‘governability crisis’ that pushed states to consider bilateral and multilateral approaches to regularise regional migrants, resulting in the 2002 Residence Agreement and subsequent regional collaboration (Mármora 2003). Several other regional organisations continue to work on deepening freedom of movement in the region, with both the Andean Community (CAN) and the Union of South American Nations (UNASUR) proposing to establish South American citizenship. For additional details, see Acosta Arcarazo (2015, 2016), Artola (2017).

4 Member states approved the agreement in 2002, and was later expanded to include Bolivia and Chile. The agreement entered into force in 2009, after each member country (Argentina 2004, Bolivia 2005, Brazil 2005, Chile 2005, Uruguay 2006, and Paraguay 2009) ratified the agreement in domestic legislation (Cernadas 2013; OIM 2013; Alfonso 2013). Peru (2011), Ecuador (2011), and Colombia (2012) later signed on. Guyana and Suriname are associate states of Mercosur, but have yet to internalise the agreement; Venezuela was suspended from Mercosur in 2016, and has not internalised the agreement. This analysis does not include French Guiana, an overseas department of France.

5 When analysing South American cases, I adopt a ‘causes-of-effects’ approach to explanation, rather than an ‘effects-of-causes’ approach to explanation that offers average effects (Mahoney and Goertz 2006). By assuming causal heterogeneity (Ragin 2000), I do not attempt to generalise these conclusions outside of the South American context. For a more explicit comparison of South American and European migration regimes, see Acosta Arcarazo and Geddes (2014) and Acosta Arcarazo (2018).

6 South American countries have implemented numerous regularisation programmes since 2002: Argentina (2002 agreement with Peru, 2003 agreement with Bolivia, 2005 agreement with Brazil, 2005-2009); Bolivia (2002-2003 agreement with Peru, 2003 agreement with Argentina, 2013-2014, 2016-2017, 2018); Brazil (2002 agreement with Uruguay, 2005 for Bolivians, 2005 agreement with Argentina, 2009); Chile (2007, 2018); Colombia (2008-2009, 2018 for Venezuelans); Ecuador (2009-2010, 2011 for Peruvians, 2011 for Venezuelans); Paraguay (2009-present); Peru (2002 agreement with Argentina, 2002–2003 agreement with Bolivia, 2014, 2017-present for Venezuelans); Uruguay (2002 agreement with Brazil, 2008, ongoing); Venezuela (2004-2013, 2011 agreement with Ecuador, 2013 for Peruvians). Compiled primarily from Alfonso (2013) and Acosta Arcarazo (2018).

7 These numbers are estimates by Schwarz (2014, 234), who collated government reports. The number of beneficiaries and legality of the programme is doubted and contested (Brewer-Carías 2005; Acosta Arcarazo 2018).

8 For a broader summary of policy changes affecting Venezuelan migrants, see Camilleri and Hampson (2018), Freier and Parent (2018), Modolo and Texidó (2018), Selee et al. (2019).

9 For additional details on this shift towards a more restrictive migration regime, see Acosta Arcarazo (2018).

10 After Colombia (1.174m), these 3 countries have received the most Venezuelan migrants: Chile (288,000), Peru (506,000), Ecuador (221,000) as of 2019 (UNHCR 2019). Certainly, politicians have imposed extensive, concerning restrictions on the right to regularisation in many other instances. This first gained widespread attention as some countries restricted entry to migrants fleeing Haiti- see Fagen (2013). Because the Mercosur Residence Agreement addresses the right to reside, not to enter, the agreement has to potential to only offer the right to regularisation to those migrants coming from countries with more favourable entry requirements, highlighting an ‘exercise in hypocrisy’ (Acosta Arcarazo 2018, 171). The result is a concerning discrepancy in who has access to which rights.