OUTLINE OF THE PRESENTATION BY DR. ADRIANA ALFONSOƒx
REPRESENTATIVE OF THE GOVERNMENT OF THE REPUBLIC OF ARGENTINA

Certain rights are fundamental for the individual and he is entitled to them because he is a human being and not because of his place of birth.

This is the principle behind the migratory policy that the Argentine Republic is developing.

For many years, the Argentine Republic lacked a migratory policy; there were merely sporadic actions that alternated between restrictive measures and amnesties. In practice, neither option proved to be the adequate solution.

Our country underwent a stage centered on the State, when it was believed that the migratory problem could be resolved internally and that Argentina was a country that merely received and did not generate migrations. Then, over the last five years, it has advanced towards the conception of a shared responsibility between the country of origin and the country of destination. This has resulted in the signature of bilateral agreements with the countries from which Argentina receives the highest migratory flows, namely Bolivia and Peru. Currently, it gives priority to MERCOSUR as a multilateral basis for a regionally-agreed solution, designed to shed light on existing conditions and framed in the ethical dimension of respect for the rights of migrants.

Accordingly, within the framework of MERCOSUR and its Associate Members, among other agreements, Argentina proposed the Regional Agreement on the Illicit Trafficking of Migrants, which has been signed by the Ministers of the Interior of the bloc and is being considered by the CMC, and also the Free Residence Agreement, signed by the Presidents of the six countries, under which any national of a MERCOSUR country may obtain residence in another MERCOSUR country merely by proving his nationality and not having a criminal record.

It is also useful to refer to the Declaration on Migratory Principles of MERCOSUR and Associate Members, signed at the meeting of the MERCOSUR Ministers of the Interior, where the intentions of the region are embodied in paragraphs such as the following:

¡§To acknowledge the important contribution of migrants to the development of our States; to strengthen initiatives underway to facilitate and regularize migratory flows between the countries of the region; to ensure to migrants the respect for human rights and all other rights recognized in the relevant international treaties in force; to require countries outside the bloc to grant a just and humanitarian treatment to emigrants from our region, corresponding to the treatment provided to their nationals in our territories; to underscore the importance of family reunion as a necessary element for the full stability of immigrants, acknowledging that the family is a fundamental pillar of society; to recognize the right of States to exercise adequate control of their borders, but without treating migratory irregularity as an offence that is punishable under criminal law; to reaffirm the commitment to combat the illegal trafficking of migrants, trafficking in persons, child trafficking and other forms of transnational crimes; to condemn xenophobic practices, mass or group deportations, and detentions without any legal basis; to recognize that migrations require a multidisciplinary and multilateral treatment; to recognize the importance of adopting policies to integrate migrants with nationals.¡¨

At the national level, on January 20, 2004, Act 25,871 ¡V the Migrations Act ¡V was promulgated as a tool for the migratory policy that the Argentine Republic is developing.

This new law, resulting from the collaboration of different governmental and non-governmental sectors, reflects the Argentine Republic¡¦s commitment to guarantee full respect for the human rights of migrants and their families, while establishing easy access to mechanisms for regularizing their migratory status, in the understanding that this is essential in order to achieve the full integration of the foreigner into the receiving society.

In this context, some paragraphs of Act 25,871 should be underscored:

- Respect for human rights and the corresponding international commitments: Art. 3: ¡§The objectives of this Act are: a) .... to comply with the international commitments of the Republic that relate to the human rights, integration and mobility of migrants ¡K f) To ensure that any person who requests admittance into the Argentine Republic shall enjoy non-discriminatory conditions and procedures in terms of the rights and guarantees established by the Constitution, international treaties, bilateral agreements in force, and the law ¡K g) To promote and disseminate the obligations, rights and guarantees of migrants, in accordance with the provisions of the Constitution, international commitments and the law, upholding its open, humanitarian tradition concerning migrants and their families ¡K.¡¨

- Right to Migration: Art. 4: ¡§The right to migration is an essential and inalienable right of the individual and the Argentine Republic guarantees this right based on the principles of equality and universality.¡¨

- Equal Treatment: Art. 5: ¡§The State shall ensure conditions that ensure effective equal treatment so that foreigners may enjoy their rights and fulfill their obligations ¡K Art. 6: ¡§All jurisdictions of the State shall ensure equal access to immigrants and to their families, in the same conditions of protection and rights that nationals enjoy, in particular with regard to social services, public property, health, education, justice, work, employment and social security.¡¨ Art. 13: ¡§For the effects of this law, any specific act or omission based on race, religion, nationality, ideology, political or trade union opinions, gender, financial situation or physical characteristics, which arbitrarily prevents, obstructs or restricts the full exercise on an equal basis of rights and guarantees shall be considered discriminatory.

- Right to Education: Art.7: ¡§The irregular migratory status of a foreigner shall never stand in the way of his admission as a student in an educational establishment, whether public or private, national, provincial or municipal; and at the primary, secondary, tertiary or university level. The authorities of educational establishments must offer counseling and advice concerning the corresponding procedures in order to remedy the migratory irregularity.¡¨

- Right to Health: Art. 8: ¡§Access to the right to health, social assistance or healthcare may never be denied or restricted to any foreigner who requires it, whatsoever his migratory situation¡K.¡¨

- Right to Information: Art. 9: ¡§Migrants and their families shall have the right that the State must provide them with information on: a) their rights and obligations under existing legislation; b) the requirements for their admittance, permanence and departure.¡¨

- Promotion of integration: Art. 14: ¡§All jurisdictions of the State, whether national provincial or municipal, shall encourage initiatives designed to integrate foreigners into the community where they reside¡K.¡¨

- Easy access to mechanisms to regularize migratory status; the fact of being a national of a MERCOSUR country or Associate Member as a basis for access to legal residence. Art. 23 subpara. l). Almost 85% of the migratory flows received by the Argentine Republic originate from MERCOSUR countries. The new migratory law establishes that being a national of one of these States allows the foreigner to have access to legal residence in Argentina. This mechanism simplifies the formalities for obtaining legal residence, thereby achieving full integration into the receiving society.

- Need for the courts to intervene in expulsion procedures: Title V, Chapter I. Under the previous Migrations Act, expulsion from national territory could be ordered and carried out by the Migrations Department, without the need for the courts to intervene.

- Retention of foreigners in order to carry out expulsion as an exclusive prerogative of the courts: Title V, Chapter II. Under the previous Migrations Act, the National Migrations Department was authorized to detain a foreigner in order to proceed with his expulsion, without the need for the courts to intervene; today, this authority is an exclusive prerogative of the courts.

- Punishment of the crime of illegal trafficking of persons. Increase of the punishment when the life, health or safety of the migrant has been endangered, or in the case of a minor. Chapter VI. For the first time, the figure of migrant trafficking is typified in Argentine migratory law. The sanctions established are one to six years¡¦ imprisonment, which can be increased to 20 years in aggravated circumstances.

The abovementioned Act 25,871 is being regulated. Its substantial differences with regard to the previous law, which was in force for more than 20 years, mean that the task of regulation is difficult and new situations must be contemplated. Consultations are being carried out with all the Government sectors involved, and also with NGOs working in this area. It must be acknowledged that the Argentine Republic¡¦s current unfavorable economic situation and employment rate are not the most auspicious scenario for the regulation and application of a law with the characteristics described above. The work of regulation is being carried out based on respect for the principle of equality of enjoyment of human rights for nationals and foreigners and, from this perspective, an effort is being made to avoid situations of inverse discrimination; namely, creating unequal treatment which prejudices nationals.

Without detriment to the foregoing and until the new regulation has been approved, the Ministry of the Interior and the National Migrations Department have adopted a series of measures designed to harmonize with the spirit which led to the drafting of Act 25,871.

Among these measures, the following should be emphasized:

- Suspension of expulsions or orders to abandon the country in the case of the nationals of adjacent countries. Directive 2074/04 DNM, issued on January 28, 2004. This directive seeks to preserve the rights of those citizens of adjacent countries who could regularize their situation in the light of the new law once its regulation has been adopted. Any expulsion ordered based on the existence of a criminal record is excepted from this norm.

- Annulment of all preventive detentions or admonitions that contain such a measure and that were issued by the National Migrations Department in accordance with powers granted to it by Act 22,439, which has been revoked. Directive 17,627 DNM, issued on April 23, 2004. As mentioned above, while Act 22,439 was in force, the National Migrations Department was authorized to detain foreigners subject to an order of expulsion. The new Migrations Act establishes that the courts have the exclusive authority to retain a foreigner. Consequently, the Migrations Department ¡V acknowledging that, as of the enactment of Act 25,871, it may not order any more detentions or admonitions in this respect ¡V annulled all measures of this type that had been adopted while the previous law was in force and that were pending execution.

- Reduction of the migration fees that foreigners processing their residency before the Argentine Consulate must pay. Directive 21,085 DNM issued on June 17, 2004.

In response to the migratory policy described above, over the period from October 1, 2003, to July 20, 2004, the National Migrations Department granted 34,182 residency permits (of which 79.5% corresponded to nationals of adjacent countries). 565 requests for residence were rejected over this period.

Despite these figures, it should be acknowledged that the National Migrations Department has a backlog of cases and that the recent normative will require the implementation of new procedures as well as the reinforcement and training of personnel. Accordingly, the Executive adopted Decree 836/04 on July 7 this year, designed to palliate this situation.

Among the measures established in Decree 836/04, the following are worth mentioning:

- It declares an administrative emergency in the National Migrations Department for a period of 180 days.
- It orders a comprehensive evaluation of the functioning of the national delegations of the Migrations Department.
- It orders the creation of a unit to provide assistance and information to migrants.
- It establishes that future requests for residency must be processed within THIRTY (30) DAYS.
- Within the National Migrations Department, it creates the National Program for Standardization of Migration Documents, with the following objectives:

a) To create the framework for new migratory policies aimed at the insertion and integration of the migrant population.

b) To regularize the situation of migrants.

o It authorizes the Migrations Department to propose the increases and modifications of the budget needed to carry out the initiatives arising from the Decree.

The said National Program for Standardization of Migratory Documentation is based on the fact that the regularization of their migratory situation is an essential condition for migrants to be able to insert themselves fully into the receiving society and for their incorporation into the legal system relating to identification, labor, taxation, etc. Hence it is important that the normative should respond to existing circumstances and establish accessible mechanisms and possible requisites for the regularization process.

Today, the current circumstances in Argentina reflect a history in which migrations have played a fundamental role; it also reflects a determined geographical situation with more than 220 authorized border posts that unite us to our partner countries in MERCOSUR ¡V the regional integration process on which we are embarked.

Eighty per cent of the migrants received by Argentina come from the countries of MERCOSUR and Associate Members. This is a reality that must be reflected in the migratory policy measures that are implemented.

In response to the foregoing, the National Migratory Documentation Program will be implemented in two stages.

The first will start on September 21 this year and, according to the terms of Decree 1169/04 dated September 6, 2004, will include nationals of countries outside MERCOSUR residing in the Argentine Republic as at June 30, 2004. (A file is attached with models of the relevant information leaflets that have been prepared.) The whereas clauses of this Decree refer to the need to regularize the migratory situation of those who, on a daily basis, demonstrate their vocation to establish themselves and carry out useful tasks for Argentine society and who will not be protected by the special regime established for MERCOSUR.
The second stage, which should be implemented in November this year, encompasses the nationals of the countries of MERCOSUR and Associate Members; in other words, it will include the nationals of Brazil, Paraguay, Uruguay, Bolivia, Chile and Peru. In this case, there is a regularization policy which only requires accrediting identity, nationality and lack of a criminal record. This policy inspired the MERCOSUR and Associate Members¡¦ Agreement on Free Residence, a proposal made by the Argentine Republic at the Meeting of MERCOSUR Ministers of the Interior and signed by the six Presidents of the bloc in December 2002. Argentina was the first country in the region to activate this Agreement at the national level, by drafting Act 25,903. We should underscore that the policy based on nationality of a MERCOSUR country was also incorporated into Act 25,871 (Migration Act), in force in Argentina since January this year.

The Document Standardization Program will be implemented under the slogan ¡§in Argentina only the persons who so chooses, will be an irregular migrant.¡¨ Indeed, foreigners who, in good faith, wish to reside in our territory will have every possibility to regularize their situation. However, Act 25,871 also establishes measures for rejecting those who attempt to cross the borders with false documentation, and the possibility of denying residence to those with a criminal record, or canceling benefits to those who have falsified information.

The implementation of the Argentine Republic¡¦s new migratory policy represents a real challenge that must be faced by governmental and non-governmental organizations and by society as a whole; to this end, the collaboration of international organizations working in this area will be important.