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1.4.2015

Changing Legal Frameworks of Immigration and Regularization

Once the republic was established in the 19th century, Argentina actively recruited immigrants from Europe. In the time of the great transatlantic migrations the country became the second most important destination in the New World after the United States. It was only under the rule of military juntas at different periods of time during the 20th century when immigration policy became more restrictive. Reforms since the beginning of the 21st century have strengthened immigrants' rights and have once again led to a more liberal approach towards immigration.

Opening of the "Casa Patria Grande" honoring Nestor Kirchner. The programm "Patria Grande" was set up to help along the legal status of immigrants. (© picture-alliance)


Military Rule and Immigration



Since the decline of the European migratory flow, the increase of immigration form the bordering countries and the importance of the dynamics of internal migration since the Second World War, Argentina went through substantial changes in the way immigration had been envisioned and legally framed. Legal revisions and perceptions regarding immigration policies for decades depended heavily on the political agenda of the country’s governments, with restrictive outlooks dominating the diverse military juntas from 1955 to 1983, and a more open approach during the civil governments in intervening years, like between 1963 and 1966 and 1973 to 1976.

The most fundamental reform occurred in 1981, when the military junta passed the "General Law of Migration and the Promotion of Immigration", or Ley Videla (named after the General and de facto head of state during parts of the dictatorship), revoking the historic Avellaneda Law of 1876. Although the law continued to endorse European Immigration, especially for colonization purposes and the general increase in population, it included many repressive features toward illegal immigration, which implicitly targeted the arrivals of neighboring countries. The law expressly forbade all undocumented foreigners from engaging in paid activities, denying them access to health and education services and obliging civil servants to denounce situation of irregularity to the authorities. As a consequence, immigration policy became an almost exclusive domain of policing functions, articulated under the doctrine of "National Security".[1] The process of regularization for migrants became increasingly difficult, keeping them in a situation of vulnerability and irregularity.

After the return to democracy in 1984, the constitutional governments did follow a more permissive line, including various waves of amnesties for illegal migrants, but the general framework of the junta stayed in place until 2004. A contradictory legal and factual practice emerged, for example granting voting rights for foreigners in municipal and in most provincial elections, but at the same time hardening the possibilities of immigrants to engage in the regular labor market and making legal job contracts a prerequisite to apply for residency.

The New Approaches of Recent Years



With the xenophobic and implicitly racist reality of immigration policy unchanged since times of the dictatorship, the last ten years witnessed a substantial revision and new rationale in migration policy in the country. Overt and tempered racist attitudes and discriminations towards African and Latin American immigrants, occurring in public and private spaces, in institutional settings and every day interactions, stand in rather stark contrast to the most recent developments within the legal framework in the domain of social rights, including the rights of migrants in Argentina. Although Argentina’s anti-discrimination law dates from 1988, it is under the governments of first Néstor Kirchner from 2003 to 2007, and subsequently of his wife Cristina Fernández de Kirchner (2007 to the present - 2015), that a highly progressive course of social rights and inclusion was implemented. The notable reforms in matters of rights for immigrants are somehow eclipsed by the most spectacular and visible reforms and new approaches on equal rights for same sex partnership, an offensive persecution of criminals during the last military dictatorship, and a significant expansion of social rights in welfare and education, including strong and effective policies of re-distribution. This rights-based migration policy has helped significantly to regularize the status of recent immigrants in the country and also benefitted refugees with special needs for protection. Economic data furthermore suggests that these policies had a positive effect on the recent, remarkable economic growth figures for the country, averaging 7.2 percent from 2003 to 2012.

First steps to make regularization easier were made in 2002 with the "Regional Agreement for Nationals of Member States of the Common Market of the South" (MERCOSUR, i.e. Argentina, Brazil, Uruguay and Paraguay) and associated states (Bolivia and Chile), permitting nationals of any of the countries to reside in the territories of the others and granted them access to any economic activity on an equal basis with nationals. A veritable turning point came with the sanction of law No. 25.871 in 2004, which followed many principles set by the 1990 UN Convention on migrant workers. In the drafting of this law, the Argentine state cooperated with various human rights and specialist organizations, many of them within the orbit of the United Nations, like the International Organization for Migration and UNHCR, through the creation of a consultative commission. Within the framework of regional integration, the law establishes three categories of residency: permanent, temporary, and transitory. The general principles articulate an ambitious program. Besides the explicit desire to integrate migrants into the socio-cultural fabric of society, including equal participation in the workforce for migrants, the text obliges the Argentine state to guarantee the human right to migration. This provided for equal treatment under the law for foreigners as for nationals, guaranteed the right to family reunification and access to health, education and social assistance for foreigners irrespective of their migratory status. Additionally, the new law also articulates the rights of Argentine citizens abroad and fosters return migration.

This was accompanied by a major media campaign to inform and encourage migrants to formalize their status, and a vast regularization program was launched – called Patria Grande (Big Homeland) – which between 2006 and 2010 facilitated the regularization of 650,000 migrants from the MERCOSUR member countries alone, and a total of 1,688,106 applications for regularizations were filed between 2004 and 2011, combining the Patria Grande program and other paths to regularization. The program guaranteed the right to stay in, leave and re-enter Argentina, the right to study and obtain work permits, and provided a first step to permanent residency. Initially, Patria Grande was conceived as an administrative instrument for regularizing the status of migrants, but quickly evolved into a central tool for the Argentine state to articulate a new vision of belonging and participation of migrant groups within the nation.

Further tools linked to the new national migration law and regularization program included a "National Institute against Discrimination, Xenophobia and Racism", a Tripartite Commission on Gender and Labor Equality, and a National Education Law (N°26.206) guaranteeing access for undocumented migrants to primary and secondary school and university. Due to the reforms of the last years, the category of "illegal immigrant" virtually disappeared from the legal reality of the country. The success of programs such as Patria Grande and other non-MERCOSUR regularization schemes secured legal residency for hundreds of thousands non-Argentines in the country. Data on irregular migration to Argentina has always been scarce, and the government does not maintain precise statistics. However, prior to the regularization campaigns of recent years, the undocumented population was estimated to be between 750,000 and one million people.[2]

This text is part of the country profile Argentina.
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Fußnoten

1.
Novick (2012).
2.
Hines (2010).

Thomas Maier

Thomas Maier

Thomas Maier is currently researching his PhD at the Institute of the Americas, University College London. His main focus of research is the history of labor and the welfare state in the Americas, particularly Argentina and the Southern Cone. Email: thomas.maier.12@ucl.ac.uk


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