COMMITTEE ON THE RIGHTS OF MIGRANT WORKERS CONSIDERS REPORT OF CHILE

The Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families considered the initial report of Chile on its implementation of the provisions of the International Convention on the Protection of All Migrant Workers and Members of their Families.

Presenting the report, Fernando Schmidt, Deputy Secretary of the Ministry for External Relations, said that decisions had been taken to meet the challenges faced by migrants in Chile, and the migratory process had undergone fundamental changes there. Before the 1990s, Chile was a generator of immigrants, but in the last two decades it had become a host country. Although immigration had not been numerically huge, it had had an important impact on Chile, enriching society. Until 1982, the migrants were mainly from European, Arabic or Asian origin. But then new migratory currents arose, from South America mainly. Immigrants made up 2.08 per cent of the population of the country. There had been a growth of 270 per cent over a period of 18 years. This had turned the whole issue of migration into a topic of growing interest.

Chile had policies of prohibition of discrimination and access to various services for a better standard of living. The government sought to promote well-being of migrants, and Chile wanted safe immigration. It wanted to provide good conditions for migrants, especially for vulnerable ones such as refugees. Concerning labour conditions for example, Law n°20.255 ensured that the minimum salary for migrant workers was the same as for Chilean nationals. Between 2002 and 2010, over half a million residency permits, both permanent and temporary had been given out.

Committee Experts raised questions concerning, among other matters, migrants with domestic jobs, the new national human rights institute, education and access to Chilean nationality for children of migrant workers, expulsions and regularisations, access to health services and especially for vulnerable persons such as pregnant women, the right to join trade unions, the right to acquire property in border areas, the measures taken to deal with human trafficking and the consular network for Chileans outside of Chile.

In concluding remarks, FRANCISCO ALBA, Committee Member serving as Rapporteur for the report of Chile, congratulated the Chilean delegation for giving frank answers and a comprehensive report. He said that Chile had integrated the international Convention well into its Constitution. There had been a clear diagnosis for the subjects to be tackled in a future, necessary law, and that was a major priority.

The delegation of Chile included representatives from the Ministry of External Relations, the Secretary of Human Rights, the juridical section of the Department for Immigration, the Secretary for Public Safety, the International Police Office and the Permanent Mission of Chile to the United Nations at Geneva.
The next public meeting of the Committee will take place this afternoon, 14 September 2011, when it will examine the report of Guatemala.

Report of Chile

The initial report of Chile (CMW/C/CHL/1) noted that Chile has a policy of appropriate openness towards migratory flows which is based on respect for migrant workers’ rights as enshrined in the Constitution and the international treaties that Chile has ratified. This means that foreign nationals who choose to live in Chile are treated without discrimination, in a general setting of respect for democratic institutions, the Constitution and the law and, in particular, current legislation governing migration. The Government’s focus, namely concern for migrant workers’ rights, resulted in two management principles: regularization of residency status, and equal treatment in terms of labour rights for Chilean nationals and migrants, whether legal or illegal.

The aim of immigration management in Chile has been to discourage the practice of employing migrant workers without legal status by recognizing their basic rights and thus encouraging efforts to urge workers and their families, especially from the most vulnerable groups, to regularize their situation in order to avoid falling victim to abuse. In practice, regularization has implied the recognition of additional rights. Since 1990, migration has become an issue of growing and constant concern for the Government. Action on migration has sought to improve living conditions for foreigners so that their stay in the country may be of benefit to both them and the community at large.

In the 2000s, international commitments on migration issues were incorporated into internal law. Chile has ratified the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families and has signed and ratified the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children and the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime.

Chilean President Michelle Bachelet expressly referred to the process in her Government Programme. There are four components to the commitment made in that programme: (a) to recognize current and past support received by thousands of Chileans abroad. This implies a commitment that the Chilean authorities will study the issue and propose policies with a human rights perspective; (b) to promote new legislation on foreign nationals incorporating the international commitments made by Chile; (c) to give prominence to migration issues in the regional integration processes in which Chile participates; and (d) to incorporate the subject of immigration into school curricula.

Presentation of the Report of Chile

FERNANDO SCHMIDT, Deputy Secretary of the Ministry for External Relations, thanked the Committee for their work. Chile attached a lot of importance to migration, it was a human rights theme and it needed a legal approach. Decisions had been taken to meet the challenges faced by migrants in Chile. The migratory process had undergone a fundamental change in Chile. Before the 1990s, Chile was a generator of immigrants. But in the last two decades it had become a host country. Although it had not been numerically huge, it had had an important impact on the Chilean society by enriching it. Until 1982, the migrants were mainly from European, Arabic or Asian origin. But then new migratory currents arose, from South America mainly. Immigrants composed 2.08 per cent of the population of the country. There had been a growth of 270 per cent over a period of 18 years. This had turned the whole issue of migration into a topic of growing interest.

Argentines and Bolivians represented a significant part of the migrants, which showed the importance of regional cross-border movement. South Americans in Chile represent 68 per cent of the population. There had been a growing demand for residency permits and for coordinating policies to deal with these migratory flows.

Chile had a policy of prohibition of discrimination and access to various services for better living. The government sought to promote well-being of migrants, and Chile wanted safe immigration. It wanted to provide good conditions for migrants, especially for vulnerable ones such as refugees. Concerning labour conditions for example, Law n°20.255 ensured that the minimum salary for migrant workers was the same as for Chilean nationals. And between 2002 and 2010, over half a million residency permits, both permanent and temporary had been given out.

Chile also tried to keep up relations with the Chileans outside of its borders. A committee had been established to improve the attention paid to them, and large budgetary lines had been earmarked for Chileans abroad.

Questions by the Experts

FRANCISCO ALBA, the country Rapporteur for Chile, remarked that the right to reparation was important, and that it did not always need to be material. He then formulated general remarks and said that Chile was slightly different from other countries because it did not officially belong to the BRICs group (Brazil, Russia, India, China), but it was probably just a question of size because economically it did belong in that category. Chile had become a country of reference in the light of its sustained economic growth, its stability and the peaceful political transition. In general terms Chile had a long-standing history of rule of law.

He noticed that migrant workers in domestic jobs represented a group that needed to be monitored closely, and the Committee appreciated that the subject was present in the report. Also, the ratification of the Convention on human trafficking was a significant step.

The Expert congratulated Chile on ratifying the Convention on Migrant Workers because not many countries had. Also, he appreciated the fact that Chile had strengthened its consular network. Chile was a “mini exporting power” and thus this consular network was crucial. Chile had been good at working with MERCOSUR on its migration policies.

He then commented on the relatively recent national human rights institute that was created in 2008. He expressed his surprise that it had not been approved or accredited and asked why. Was it because of a lack of independence?

The Rapporteur asked for more statistical information. The delegation could try to disaggregate the numbers more. He then added that a number of actors working on the subject of migration still had some unheard claims, such as education for migrant workers. Women using emergency services also were in need because if they did not have full access they had to pay for services. The Committee wished for more information on the subject. Would the government consider “affirmative action” aimed at migrant workers? Sometimes assimilation and integration were difficult and demanded extra attention, but in Europe such programs existed.

Many children of migrant workers in transit did not have access to nationality because of jus solis, they were still not Chilean. Yet when they got to 21 problems arose. There was a specific article in the Convention, article 21, on that subject. Everyone had the right to a nationality. They could not end up being stateless persons. Also, so as to clear up the legal status of an immigrant, there could be long periods of waiting and sometimes there were cases of detention although the migrant was not a criminal. Did the former “offender’s card” still exist? Would it soon be dealt with in the next immigration bill? It would maybe need to be modernised.

Another expert thanked the delegation for the high calibre report and congratulated Chile for the work achieved in the South American migration conference. Regarding the figures given, he commented that the country had made much effort in changing the Chilean Constitution and adapting the framework to respect migrants’ rights. Now there was equal protection by the law for citizens and non-citizens. The Expert also expressed congratulations for the fact that state permits allowed migrants to apply for jobs without any restrictions.

The Committee member underscored that according to the labour code, any form of discrimination ran against labour law. Nonetheless, in some cases the law could require Chilean nationality as a condition. For example, at least 85 per cent of employees in a firm must be of Chilean nationality. In the law on shipping also, the captain and crew of ships had to be Chileans. He wanted to have more details on these contradictions. Then he also evoked that the authority at the border must stop a migrant if they were not regularised. The military justice code provided for punishment for members of the army who use unnecessary violence – did the delegation have any case law?

Concerning the prohibition of the stripping of property, the Committee noted some incoherencies as well. Moreover, Chilean laws on immigration did not contain specific provisions on attention that had to be paid to the death of a migrant worker. The Committee wished to have more information on this.

The migrant worker who was undocumented was subjected to the Minister of Interior and only had 24 hours to submit documents for appeal. Also, certain categories of migrant workers did not exist in the Chilean law, how could the delegation explain this?

Could the delegation tell the Committee how migrants were informed of their rights to contact their consulate in case of detention?

What measures had been taken to deal with human trafficking and did the victims benefit from specific programs? Further questions were asked about human trafficking and sexual exploitation. Many girls were forced into prostitution or domestic labour – did Chile lead in-depth studies about that issue, and did the delegation look at the recent report that came out by the Special Rapporteur on that issue?

Another expert formulated three questions. The delegation mentioned that the drafting of a bill on migration would soon be debated. She hoped that the provisions of the Convention could be included in that bill. What kind of administrative implementation had been done in respect to the Convention? In terms of detention of an illegal immigrant, what were the administrative practices? Were the migrants held by the gendarmerie? The Convention prohibited taking the migrants to penitentiaries.

One Committee member noted that immigration will probably increase because Chile was doing well economically. He had the impression that there was a preferential treatment for migrants from some countries. What measures were taken to palliate that? Also, still recently, Chile was a migrant producing country. Were there special institutions to deal with the influx of Chileans who would return? Was Chile recognizing dual nationality?

An Expert congratulated Chile for applying the Convention. She asked about the children of migrant workers and regretted that they could not take the Chilean nationality. Were any steps being taken to change this soon? Many migrants coming to Chile were women. Were there any gender-based policies taking this into account? Residence permits were granted to dependents but they were not allowed to engage in remunerated activity, which was regrettable. She also wanted more details about what happened when the permit was expired.

Response by the Delegation

The delegation recognized the need to improve the statistical information. They also said that the new national human rights institute was quite new and that was why it was not accredited yet with the international body in charge. Also, it had a wide mandate and could tackle any human rights issue, so it could indeed tackle questions of immigration.

With respect to consular protection, the consular network was quite extensive and dealt with that. The network was focused on helping Chileans and meeting their needs. They had strict instructions concerning legal advice they had to give to Chileans living abroad. Concerning the facilities to help Chileans to come back, there were various programs for housing and medical care to encourage the return of Chileans who had gone into exile and it had such an effect that after the return of democracy Chile had no more requests for returns. Concerning the right to vote from outside the country, the Chileans needed to be on a list.

Another member of the delegation tackled the subject of female migrants and child migrants. Concerning nationality, the requirements were that the applicant had to be 21, had to have lived five years in Chile and had to have no criminal record. If one of the parents had been nationalised in Chile, the children could receive the nationality when turning 18.

Any foreigner could have access to public health service in Chile. It is obligatory for an employer to contribute to health care schemes for the employees. For illegal immigrants, and if it was a long-term situation, the Ministry of the Interior can grant a temporary residency permit that can be extended for humanitarian reasons. On the topic of women, any expectant mother had the right to a visa for a period of one year. Any victim of domestic violence also had the right to such a temporary residency permit and access to the special care centres that existed for them. Minors or adolescents were allowed to regularly renew their study permit.

Dual nationality was allowed. The Constitution used to demand that Chileans only have one nationality but this was changed in 2005.

Trafficking in persons was a punished activity. There was also an obligation to grant victims of this crime a permit of at least six months, which provided for the necessary time to lead an investigation.

About measures of expulsion, the delegation was told there was little time for recourse. Law had provided for special appeals to the higher courts, and this had to be within 24 hours if the person was within the capital. This could also be done by someone else in the name of the migrant. There was another type of appeal, an administrative appeal, that could be lodged but it took more time and the deadline was more flexible for it.

Questions by the Experts

Expulsion was a very strong measure, so one expert asked about the scope of it. One ground for expulsion was that if someone did not pay a fine within 15 days: this seemed a bit extreme. Maybe the grounds for expulsion could be reviewed. How much were these fines?

One expert asked about the phenomenon of incommunicado quoted in the report and realized it was an issue of translation, it was about not communicating some information.

Was there a system of ombudsman in Chile, and did it take into account the issues of migrant workers?

Response by the Delegation

If a migrant was too poor to pay a fine, they could have an extension of six months.

Concerning foreigners who wanted to acquire property in border areas, there was no prohibition but there were specific regulations for foreigners. The law was changed in 1993 and now foreigners could hold property in those areas (including beach areas). From 1993 to today almost all requests by foreigners to acquire land had been granted.
Chile had a national service for women, which only deals with the situation of women, including migrant women. The programs that existed were not only for Chilean nationals. There was the program called “Chile welcomes” and another one with a network of shelters for women who suffer from domestic violence. These shelters provided social, psychological, legal and medical help. There were about 90 shelters in the entire country. This interdisciplinary support for women had a four month-timeframe. When the domestic violence threatened a woman’s life the program was more in-depth, free of charge and anonymous and childcare was also provided; the perpetrator of the violence could not know the location of the woman. There were 24 shelters like this in the entire country and in 2010 about 792 women had been accepted in this program. About 400 foreign women had been accepted in the last five years. The shelters also helped the women find jobs through workshops, labour mediation, education and digital literacy.
It was important that all migrant children could benefit from the system of scholarships and have access to all levels of education, thus ensuring equal access between them and Chilean nationals. Also, there was a student visa that could be issued, whether they were legal or illegal migrants at the moment of application.
Concerning trade unions, the delegation specified that workers, whether legal or illegal, migrant or not, were allowed to join trade unions.
Public health services, including emergency services, were accessible for any type of migrant, whether legal or illegal.
Concerning the death of a foreigner recently arrived in the country, if there was no testament, there was a service that provided advisory services to helped the family concerned with the division of property. In case of aliens who wanted to divorce in Chile but did not have enough funds to pay, the same administrative body could help them get divorced for free.
The student visa did not prohibit students from working. Concerning the temporary residency permit, family members were initially not allowed to work but they could ask to change this.

Questions by the Experts

Chile had put some reservations on the migrant workers’ Convention regime. Did it plan to withdraw these reservations at one point?

As long as a person was not able to regularise their situation, was the person obliged to stay in Chile? Concerning paragraph 250 of the report, in case of expulsion, legislation provides for a 24 hour time span to appeal, but this was not very long.

Concerning discrimination against migrants, what specific measures had been taken to put a halt to those attitudes?

There could be affirmative action to provide better help to some migrants; what did Chile plan about that? What was the scope to permit access to programs for victims of trafficking? What was the automaticity of granting visas for these victims? The Committee was aware that this was a new law so there were maybe not that many cases yet.

There were a high number of female migrant domestic workers and they often brought along members of their family. The Committee wanted to have more information on these families and their situations. Also, the Committee received information according to which pregnant migrant women in an irregular situation had no access to health services, did Chile plan to change this situation?

What was the minimum age to get married? Was it still 12 years for women and 14 years for men? The Expert also inquired about family reunification and asked for more details.
A Committee member asked again about detention and due process. She asked whether Chile would consider putting the non-criminal migrants in a separate detention centre.
Another Committee member asked what was the recognition of diplomas received in Spain by Chileans? Were the Chileans abroad allowed to vote?

Response by the Delegation

A delegation member confirmed that there was indeed discrimination against Afro-descendents, and Chile was developing public policies to promote tolerance. Initiatives had been taken last year and a bureau set up for non-discrimination. The delegation had given the Committee a document on these initiatives. In 2010, there were seven workshops with public officials, teachers and members from the civil society. Now there was an annual “tolerance day” to establish a more favourable environment, especially for people of African descent. The government also looked at areas that affected Chileans themselves, such as issues for people with disabilities.

With respect to marriage, the delegation specified that the persons under 18 may marry provided they had authorisation from the parents and were at least 16 years of age. Concerning re-unification of families in Chile, the policy allowed for recent migrant families to have a residency permit. The new law that Chile was planning to draft would soon enshrine a broader right to re-unification, allowing also grandparents, for example, to join migrant family members in Chile. With regard to the student visa for migrants’ children, it was valid for one year and then extendable by consecutive year-long periods until studies were completed. Upon completion of studies a person was allowed to apply for permanent residency.
Migrants could be held in detention centres if they had committed an offence, otherwise they should not been detained. A migrant could not be detained only because he or she was a migrant.
The illegal migrant was allowed due process and reasons for expulsion were rejection or refusal of visa or residence. The migrants were then given legal assistance. The migrant was allowed to receive assistance from consular services. There could be an appeal, and there were two other types of recourse. Free legal assistance was provided for migrants.
If the residence permit was for less than a year, an irregular alien might leave without any formalities 30 days after the expiration of their residency permit. If the permit was for a year or longer, the period of leave was extended to 60 days. If the migrant took longer then 60 days they had to go to a specific office to complete administrative papers, although there was no fee for the service.

Chile would try to include all the recommendations of this Committee in their immigration law that was soon to be drafted.

Concerning consular protection provided to Chileans working abroad, Chile had about 100 consular offices globally. All situations were unique so there was no specific manual; every person in need was seen individually. If the Committee wanted more details, they needed to ask more specific questions for the delegation to be able to see if there was responsibility in not dealing well with some cases. The delegation did not have any specific examples of Chileans who received expulsion orders.

Chile indeed had agreements with some countries for recognition of diplomas, for example with Spain. The situation of Chileans abroad was normal and the cases the Committee had heard were very specific cases and not representative of the situation of all Chileans abroad. Therefore the delegation wished to receive examples of specific cases.

Concerning voting procedures for Chileans abroad, there had been a parliamentary process to seek a solution to this problem. Voting was obligatory and Chileans who did not fulfil their duty received a penalty. The debate was about whether to enforce this abroad or not, which did not seem very possible. The internal voting system might be changed from compulsory to optional.

Concluding Remarks

In conclusion, PEDRO OYARCE, Permanent Representative of Chile to the United Nations at Geneva, thanked the Committee for their remarks and constructive dialogue, and expressed a hope to see this type of dialogue for all human rights bodies and fora. There was a need to keep instilling a human rights culture in Chile, he said. He also thanked the national human rights institute for being present, as well as the non-governmental organizations.

FRANCISCO ALBA, Committee Member serving as Rapporteur for the report of Chile, congratulated the Chilean delegation for the frank answers and for the comprehensive report. He said that Chile had integrated the international Convention into its Constitution well. There had been a clear diagnosis for the subjects to be tackled in a future, necessary law, and that was a major priority. The Committee hoped that it would see the benefits brought by that hypothetic law in the next report presented by Chile.

ANA CUBIAS MEDINA, Vice President of the Committee, said that it was very important to discuss Chile as a country of immigration because until now it had mostly been a country of emigration. Chile had all the legal aspects underway and the political will to fulfil a complete and successful adaptation.


For use of the information media; not an official record

CMW11/010E