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Chile: Human Rights Monitoring Bodies Denounce Proposed Legal Reforms Increasing Detention Measures for Undocumented Migrants and Asylum Seekers

Chilean soldiers patrol the country’s border with Peru (source: Le Monde,

In a communication to Chile, a group of UN experts have condemned proposed reforms to the country’s migration and asylum legislation. If approved, the reforms would provide criminal penalties for irregular entry and stay, including prison sentences and fines, and increase administrative detention measures for people awaiting deportation. The effort also reflects policy proposals in numerous other countries across the globe aimed at limiting the ability of refugees to seek asylum and undermining obligations provided in the UN Refugee Convention. 

The UN press release–issued jointly by the Special Rapporteur on the Human Rights of Migrants, the Working Group on Arbitrary Detention, the Special Rapporteur on Human Rights Defenders, and the Special Rapporteur on Racism–points to legislative bills (boletines n°15.261-25 y n°15.439-06) under consideration in the Chile’s National Congress, which would modify Law no. 21,325 on Migration and Foreigners, adopted in 2021. Since the current law came into force in February 2022, Chile has experienced increases in the numbers of migrants and refugees seeking to enter the country. Its legislative and executive branches have responded by proposing various amendments aimed at ramping up migration controls.

Law no. 21,325 currently provides that irregular entry into Chile is not a crime (Article 9: “No criminalización. La migración irregular no es constitutiva de delito”). However, bill no 15.261-25 seeks to amend this by introducing criminal sanctions for anyone who enters the country in an irregular manner. According to the bill, asylum seekers who enter irregularly and are not accepted as refugees, or who do meet the conditions to be recognised as a refugee but who did not enter directly from territory where their life or freedom is threatened, will face a fine and/or imprisonment of up to three years. 

The bill would also extend the maximum length of administrative detention–used only in expulsion proceedings–from 48 hours to 7 days.

Numerous observers have condemned the bill, arguing that it violates international human rights and refugee law, and that it will expose migrants and refugees to rights abuses. In its 24 May communication to Chile, the UN experts raised numerous concerns, stating: “Unauthorised border crossing cannot be considered a crime. We would also like to recall that the CMW has indicated that the criminalisation of irregular migration encourages and promotes the perception amongst the population that migrant workers and their families in an irregular situation are ‘illegal,’ which incites public demonstrations against immigration, as well as discrimination and xenophobia.” 

Noting their concerns regarding prolonged and mandatory confinement, the UN experts warned Chile that the amendments could lead to arbitrary detention. In particular, they point to the report of the Special Rapporteur on Torture (A/HRC/37/50), which says that “criminal or administrative detention based solely on migration status exceeds the legitimate interests of States in protecting their territory and regulating irregular migration, and should be regarded as arbitrary” (paragraph 24). 

Against a backdrop of rising migration to Chile, increased pressure on resources, and lack of integration policies, migrants and refugees–particularly Venezuelans–in the country have experienced increasing stigmatization in recent years. The north of the country has witnessed numerous anti-migrant protests, with some violent groups breaking up and destroying informal migrant settlements.In February, the government deployed troops along its northern border with Bolivia and Peru, to prevent undocumented arrivals. 

Previously, police came under fire when they carried out mass expulsions, largely of Venezuelans, from regions in the north of the country, as the Global Detention Project reported in May 2021. While the then-recently adopted migration law (Law no. 21.325) made it easier to remove foreign nationals, it nevertheless also enabled migrants to pursue visa procedures without being detained, which spurred migrant advocates to denounce the forced removals. 

In April 2021, after cases emerged of mistreatment by police in the towns of Arica and Iquique, the Jesuit Migrant Service (Servicio Jesuita a Migrantes or SJM) filed legal appeals claiming that there had been “irregularities” in their treatment, including: improper body searches; lack of access to lawyers representing the detainees at police stations; and people held for more than 24 hours, beyond the legal limit. The SJM pointed to “the new Migration Law (Ley de Migracion y Extranjeria) … that allows those who arrived irregularly into Chile, to leave and request a visa abroad without being sanctioned.” The NGO also stated that it does not make sense that while the law provides this possibility, many people are being expelled without giving them the opportunity to engage in this process. 

Americas Arbitrary detention Chile Legal Reform Refugees and Asylum Seekers United Nations Venezuelan Refugee Crisis