The Human Rights-based Approach: The Pending Issue of the Migration Law
Dejusticia June 6, 2020
Ante los impactos humanos de la crisis venezolana, que desde hace varios años traspasa sus fronteras, este nuevo rol ha traído para Colombia múltiples retos. / In the face of the human impacts of Venezuela’s crisis —which has extended beyond its borders for several years— this new role has posed multiple challenges for Colombia. | EFE
By: Silvia Ruiz y Johanna Muñoz Pulido*
It is no surprise that, due to the precarious enjoyment of minimum standards of decent living in Venezuela, Colombia became the largest host of Venezuelan migrants and refugees in the world. In the face of the human impacts of Venezuela’s crisis —which has extended beyond its borders for several years— this new role has posed multiple challenges for Colombia. Although migration is not new to our country, which continues to expel people and has received groups of migrants to a lesser extent, the current situation reveals the need for a migration law that is part of an integral State —not governmental— policy. The bill the Ministry of Foreign Affairs submitted to Congress on July 23 presents an opportunity to fill this void and overcome the current response limitations, provided it includes a rights-based approach.
Although the Colombian government has implemented a series of measures to assist the Venezuelan population, this response has been sectorized and short-term in nature. For example, the requirements and benefits of the Special Stay Permit (PEP), a mechanism that seeks to regulate some sectors of the Venezuelan population, are not in line with many people’s intentions of staying in the long-term. Additionally, the coordination in implementing these measures, for example, in the access to the healthcare system, has been deficient; although the bearers of the PEP may access the system, the regulations are not apparent on whether or not they may access the SISBEN.
The bill seeks to establish the general guidelines of the migration policy to give a more coordinated response to the various migration processes Colombia faces. Its merits include the novelty of streamlining all the regulations —replacing multiple norms in diverse areas— and recognizing that the actions must go beyond a conjunctural response. It acknowledges that the law must be in line with the global changes, and emphasizes that Colombia faces various migratory processes that require a sufficiently broad law to address multiple scenarios.
However, the novelty and scope proposed fall short, as the project fails to go beyond a compilation of some aspects of the existing regulations and does not offer much innovation. Although it gives further clarity to the rights of Colombians who have left the country, it maintains the same provisions for foreigners, that is, does not provide an alternative for the regularization of those who have arrived in the country. Furthermore, it also fails to adapt its approach to the diverse and complex context of the Venezuelan exodus and does not provide a strong foundation for a law that can address similar migration flows in the future. In other words, it fails to propose a comprehensive and coordinated initiative.
Additionally, the proposal focuses on the sanctioning aspect of the existing regulatory regime by translating it into legal provisions, giving to Migración Colombia and other entities the autonomy to establish the visa policies and the procedures to recognize the need for international protection. This implies that it creates a needs and capacities approach aimed at identifying the immediate needs that allow strengthening the government’s competencies instead of responding to the needs of the migrant population and the State’s obligations to them.
Although this approach has worked as a response to the emergency, it exposes the gaps in the protection of the vulnerable migrant population. Even if the bill summarizes the human rights regulatory framework, it lacks a rights-based approach and does not have a straightforward methodology to address the various migratory phenomena. With a human rights-based approach, the law would provide a methodological framework to protect, respect, and promote the rights of the vulnerable migrant population, particularly to improve the abilities in the exercise, respect, and vindication of their rights. However, so far the actions have been characterized by a response to the situation and little analysis of the conditions widening the gaps in the structural protection to migration.
This is particularly concerning because, on the one hand, it strengthens administrative and sanctioning procedures that may violate the migrants’ rights. For example, a migrant might be arrested for up to 36 hours only to verify his or her identity; could have an administrative proceeding initiated against him or her at the request of any person and, if the result is a fine, he or she could face deportation if not paid within two months. On the other hand, it makes the governments responsible for State relevance and obligation procedures, such as the recognition of asylum and statelessness, thus avoiding a thorough analysis of the consequences of the Venezuelan exodus and the needs it has revealed regarding international protection strategies.
In short, the absence of a rights-based approach in the bill would result in deep inconsistencies in its contents and actions once the law is enacted. Even if it first proposes a broader vision of the migration policy, this vision would be aimed at the continued implementation of short-term measures. It would have a decontextualized conception of the various migration dynamics within the country. The bill also results in a regulatory compilation with no logical guideline to address responses aimed at the comprehensive protection of the current and future migrant and refugee population, which could result in low-reaching strategies for vulnerable migrants.
The enactment of this bill is a significant opportunity to implement the lessons learned in the last years and ensure the protection of migrants and refugees’ rights. If there is a technical and thoughtful debate, the State could would wasting resources and efforts and could become a State with an exemplary and safeguarding approach in its migration policy.
*Intern at Dejusticia