María Isabel Rivero
IACHR Press and Communication Office
Tel: +1 (202) 370-9001
Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) welcomes Ecuador’s Organic Law on Human Mobility, which went into effect on January 28, 2017. The IACHR urges the State of Ecuador to ensure that rules and regulations to implement this and other laws on human mobility are in line with inter-American norms and standards on human rights.
The IACHR welcomes the inclusion in the law of such principles as free movement of people under the State’s protection; the prohibition on criminalizing people with irregular migration status; equality under the law and non-discrimination; the best interest of children and adolescents; the principle of non-refoulement, by which a person or his or her family members are not returned to a country when their rights to life, liberty, or integrity could be at risk; and the pro persona principle in the context of human mobility, in the sense that the law itself indicates that its norms shall be carried out and interpreted so as to be most beneficial to persons in the context of human mobility.
The law also confers initial temporary resident status on people who are recognized as refugees or stateless persons, and after two years they can request a renewal of their temporary residency or request permanent residency. The Commission also notes that the law establishes that the General Directorate of Civil Registry and Identification will issue a national ID for people who are recognized as refugees or stateless persons. According to figures from the office of the United Nations High Commissioner for Refugees (UNHCR), at year-end 2015 Ecuador was sheltering 53,191 refugees. This represents the largest population of refugees in Latin America.
Another important step forward is that the law establishes an exceptional mechanism for naturalization so that people who are recognized as being stateless can acquire Ecuadorian citizenship after having been in the country for at least two years. The Commission also notes that the law establishes a procedure for recognizing the status of statelessness, making Ecuador the first country in South America to establish these types of procedures. The establishment of the procedure for determining statelessness, the granting of resident status, the issuance of identity and travel documents, and the exceptional mechanism for naturalization all represent important measures for protecting the rights of stateless persons and for eliminating statelessness in the region and complying with the 2014 Brazil Declaration and Plan of Action. The Commission believes that the effective implementation of these and other measures will encourage integration of refugees and stateless persons, while allowing them to contribute more fully to Ecuador’s development.
As the UNHCR has indicated, the law that has been adopted represents a major step in the protection of people on the move, including refugees, asylum seekers, stateless persons, and victims of human trafficking and migrant smuggling. The UNHCR added that in a global context of increasing forced displacement, with the adoption of this law Ecuador offers an example of protection for all people in the context of human mobility, assuming not only its international responsibilities but also enacting the rights recognized in the Ecuadorian Constitution.
“It is very significant and, we believe, very positive that the free movement of people and human equality are the new paradigm for Ecuador’s Human Mobility Law, where it is the State’s role to ensure the rights both of Ecuadorian citizens living abroad and migrants living in Ecuador temporarily or permanently,” said the IACHR Rapporteur on the Rights of Migrants, Commissioner Enrique Gil Botero.
For her part, Commissioner Esmeralda Arosemena de Troitiño, IACHR Rapporteur on the Rights of the Child and country Rapporteur for Ecuador, said that “it is extremely important that the law establishes that the principle of the best interest of children and adolescents must be observed and implemented by the authorities in all processes and procedures related to human mobility. It is also a positive step that the law establishes a prohibition on detaining children and adolescents for administrative immigration offenses, as well as a prohibition on detaining their parents when this goes against the best-interest principle and the principle of family unity. The incorporation of these express prohibitions on immigration detention is in line with the standards developed by the Inter-American Commission and Court.”
The IACHR also notes some troubling aspects. Among other things, the law establishes an administrative procedure for appealing decisions, but it does not explicitly contemplate the possibility of judicial oversight. For example, in the case of a decision to deny a request for asylum (Article 103) or to order a deportation (Article 144), the only way to appeal the decision is administratively, meaning the law does not provide for the possibility of judicial oversight. Another point is the degree of discretion that could arise from the wording of vague legal concepts in certain articles, opening the door to potentially abusive interpretations. For example, the law establishes that one of the grounds for deportation is if the person has “committed crimes against the constitutional State structure that carry a sentence of less than five years under criminal law,” although the Ecuadorian Criminal Code does not include the concept of “crimes against the constitutional State structure,” and this is not defined in the text of the law. Another ground for deportation is if a person, “as a temporary visitor to Ecuador meddles in internal political matters of Ecuador,” a wording that allows for a wide margin of discretion. Similarly, “being considered a threat or risk to internal security, according to information available to the Ecuadorian State” constitutes grounds for denying naturalization papers, temporary residency, or permanent residency, or for not admitting a foreigner into the country. These grounds that restrict rights should be interpreted restrictively and applied only as an exception, should be well-founded, and should always be subject to judicial oversight. In addition, according to Article 142, when someone has not regularized his or her immigration status within the time frame established in the law, “the immigration control authority shall notify that person of the obligation to leave the country within thirty days; if this deadline is not met, deportation procedures shall begin.” Inter-American human rights standards establish that deportation should always be a last resort.
In that regard, the IACHR believes that several of the foregoing aspects could be rectified by issuing rules and regulations to the law that are in line with inter-American norms and standards and by establishing objective and non-discretionary criteria for their enforcement. “This new law in Ecuador represents major progress in relation to the national security approach that has predominated in many previous and current immigration laws in the region,” Rapporteur Gil Botero said.
A principal, autonomous body of the OAS, the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.