Argentina

Not Available

Immigration detainees

2019

Not Available

Detained children

2017

3,842

New asylum applications

2019

3,857

Refugees

2019

2,212,879

International migrants

2019

Overview

Argentina, like its South American neighbours, has long de-emphasised detention and deportation in its immigration policies. However, in 2015 its posture changed dramatically after a conservative government took office, which pushed through several restrictive policy reforms and announced the opening of the country’s first specialised immigration detention centre. A new administration that took office in 2019 has criticised some of these reforms, suggesting a change of course. Although the country began implementing measures in March 2020 to safeguard staff and inmates in the country’s prisons against Covid-19, it is unclear whether any specific measures have been taken with respect to those detained for immigration reasons.

Types of facilities used for migration-related detention
Administrative Ad Hoc Criminal Unknown

03 September 2020

ICN Diario, “Por la Pandemia Más de 2.200 Presos Salieron de las Cárceles Federales de Argentina,” 31 July 2020, https://www.icndiario.com/2020/07/pandemia-mas-de-2-200-presos-salieron-de-las-carceles-federales-de-argentina/
ICN Diario, “Por la Pandemia Más de 2.200 Presos Salieron de las Cárceles Federales de Argentina,” 31 July 2020, https://www.icndiario.com/2020/07/pandemia-mas-de-2-200-presos-salieron-de-las-carceles-federales-de-argentina/

On 31 August 2020, the UN Committee on the Rights of the Child praised Argentina’s decision to not deport a Peruvian mother after she completed her sentence for drug trafficking, taking into account the best interests of her three children, marking a new precedent in the country. In 2000, she was sentenced to imprisonment and was to be deported following her release and prohibited from re-entering the country. Three years later, she was released and Argentina’s immigration authority (Dirección Nacional de Migraciones or DNM) requested her deportation. Her case reached the Supreme Court in 2019, during which the Court approached the UN Committee on the Rights of the Child, who warned the country’s immigration authority of the irreparable damage that separation would entail for her three children. The DNM subsequently decided to suspend the deportation order against the mother and provide her with a permanent residency permit in July 2020. The president of the Working Group on Individual Communications, Ann Skelton, member of the Committee on the Rights of the Child, said that if the mother “had been deported, her children would have been separated from their mother or obligated to leave Argentina, the only country they know.”

On 31 July, Iberoamérica Central de Noticias (ICN) reported that from the start of the pandemic, more than 2,200 prisoners had been released from Argentina’s prisons, representing a reduction of 16 percent of the prison population. In addition, to avoid overcrowding, the government began on 7 August construction works in three prisons of the Province of Buenos Aires with the objective of building 1,350 new spaces until the end of the year. The plan comes after calls from part of prisoners and organisations to reduce overcrowding as well as after riots took place in certain prisons around the country during the Covid-19 crisis.


16 June 2020

Prisoners Rioting on the Roof of the Villa Devoto Prison, (Getty Images,
Prisoners Rioting on the Roof of the Villa Devoto Prison, (Getty Images, "Coronavirus en Argentina: por qué genera tanta polémica la decisión de sacar de la cárcel a algunos presos por riesgo a que contraigan el Covid-19," BBC News, 1 May 2020, https://www.bbc.com/mundo/noticias-america-latina-52496655)

Responding to the Global Detention Project’s Covid-19 survey, the country’s prison ombudsman (Procuración Penitenciaria de la Nación or PPN), reported that the country’s immigration authority (Dirección Nacional de Migraciones or DNM) had informed them that deportations had been temporarily suspended. This measure was adopted through Disposition 1717/2020 of the DNM ordering the “suspension of expulsion operations ordered by the courts within the framework of Article 64 of Law 25.871 for the term of thirty calendar days, from 17 March 2020.” This suspension was then extended by DNM Disposition 1923/2020 of 17 April and subsequently by DNM Disposition 2205/2020 of 14 May. Nonetheless, the PPN reported that six Bolivian nationals detained at the ‘Complejo Penitenciario Federal de CABA’ were expelled from Argentina through the land border with Bolivia and further expulsions are planned. In addition, three Spanish citizens are waiting to be expelled to their country as well. These expulsions were carried out with coordinated efforts between the Ministry of Justice and Human Rights of the Nation (Ministerio de Justicia y Derechos Humanos de la Nación) and the respective embassies or consulates. The PPN indicated that they tried obtaining further information in this respect, but were unsuccessful in doing so.

The PPN also reported that the national state of emergency measures have had an impact upon immigration policies. According to the Decree of Necessity and Urgency (Decreto de Necesidad y Urgencia or DNU) 274/2020 of 16 March, non-residents were prohibited from entering the country’s territory through ports, airports, and all other entry points. Initially, borders were closed for 15 days, with the possibility to extend if the measure was deemed necessary. On 27 March, according to DNU 274/2020, the prohibition of entry was extended to include all residents and Argentinean nationals residing out of the country. The prohibition of entry for Argentinean nationals residing outside of the country was lifted on 1 April through DNU 331/2020, while all other restrictions were kept in place. Only the Ezeiza International Airport was opened along with specific border crossing points:

- Paso de los Libres/Uruguayana (border crossing to Brazil)
- Gualeguaychu/Fray Bentos (border crossing to Uruguay)
- Salvador Mazza / Yacuiba (border crossing to Bolivia)
- Cristo Redentor (border crossing to Chile)
- Paso San Sebastian (border crossing to Chile)

Further, the prohibition of entry onto national territory was subsequently extended until 24 May through DNU 493/2020. The PPN indicated that these measures in addition to lockdown measures have made it impossible for people to circulate through the territory.

In responding to the GDP Covid-19 survey questions, the PPN also indicated that they did not have information concerning whether the country had put in place a moratorium on new immigration detention orders nor did they have information regarding whether immigration detainees had been released. In addition, the PPN stated that they did not have access to information regarding whether immigration detainees are tested for Covid-19 or as regards what measures have been put in place to prevent the spread of the disease within detention centres and penitentiaries.

Concerning the country’s prisons, on 27 May President Alberto Fernandez announced the construction of 12 hospital units (288 beds) for prisons in the province of Buenos Aires to ensure that prisoners are isolated to prevent the spread of Covid-19. According to Prison Insider’s “World Map of Coronavirus in Prison,” one prisoner has died from Covid-19 and there are 68 infected prisoners in the country’s prisons.


03 April 2020

Police operation to halt a riot in the Las Flores Prison, in the province of Santa Fe, 24 March 2020, (https://elpais.com/sociedad/2020-03-25/cinco-muertos-en-motines-en-carceles-argentinas-durante-la-cuarentena-por-el-coronavirus.html)
Police operation to halt a riot in the Las Flores Prison, in the province of Santa Fe, 24 March 2020, (https://elpais.com/sociedad/2020-03-25/cinco-muertos-en-motines-en-carceles-argentinas-durante-la-cuarentena-por-el-coronavirus.html)

Argentina’s borders have been closed to both nationals and non-nationals since 27 March 2020. On 31 March 2020, this measure was extended until 12 April 2020, through a Decree of Necessity and Urgency, with some modifications, including the possibility for nationals and residents to “gradually return to the national territory.”

There are reports indicating that authorities in parts of the country are taking exceptional measures to force migrants out of their provinces and to step up apprehensions of people in border areas. Argentina does not have dedicated immigration detention centres and does not emphasise detention in its immgration policies. Prisons are sometimes used to hold immigration detainees.

On 13 March 2020, the International Observatory for Prisons - Argentina section - wrote to the Ministry of Justice urging that measures to prevent the spread of Covid-19 within penal institutions be implemented. The letter highlighted the current lack of hygiene and food and called on the Ministry to elaborate a strategy to avoid riots and the spread of the disease. On 23 and 24 March 2020, riots broke out in several penitentiaries, leaving five prisoners dead and many more injured. Following the riots, the International Observatory for Prisons expressed its concerns as regards the situation in Buenos Aires’ prisons in a letter addressed to the Supreme Court of Buenos Aires. The letter criticises the lack of measures to mitigate the current situation and the recourse to physical violence from part of security forces as a means to regain control.


Last updated: April 2020

Argentina Immigration Detention Profile

 

 

KEY FINDINGS

  • New legislation enables indefinite immigration detention when an individual challenges a detention decision via administrative or judicial action.
  • Despite Argentina’s widely criticised decision to open the country’s first immigration detention centre in 2016, the new centre was never used and no other specialised centres have been opened.
  • Detention measures for immigration-related reasons are rarely applied, reflecting a trend common to most countries in South America, where detention and deportation have historically not been given major importance.
  • Argentina employs “retention” as a euphemism to denote detention in its immigration law.
  • Immigration law does not specifically mention a requirement to assess “alternatives to detention” or non-custodial measures before issuing a detention order.
  • In July 2019 there were 2,663 foreign nationals in federal prisons in Argentina, which amounts to 19% of the total federal prison population.
  • Argentina’s National Direction of Migration does not publish data relating to the number of persons it detains or expels. 
  • In March 2020, the Covid-19 crisis spurred the government to place the country under lockdown and close its borders.  
  • Reports indicated that some local authorities used the pandemic as an excuse to force migrants out of their provinces and to step up apprehensions in border areas.

 

1.    INTRODUCTION[1]

Argentina has historically been an important migrant destination country in South America. Although the majority of immigrants come from neighbouring countries—Chile, Bolivia, Paraguay, Peru, and Uruguay[2]—there has been an increase in the numbers of people arriving from as far away as China. Indeed, Chinese arrivals increased from 5,850 in 1995 to 14,397 in 2015.[3] Migrants from European countries, mainly Italy and Spain, also account for a small but important percentage of the country’s immigrant population.[4]

Argentina’s National Migration Law (NML) (Ley de Migraciones N 25.871) was adopted in 2003 and came into force in January 2004. This law and its accompanying Regulatory Decree (N 616/2010) form part of Argentina’s migration legal framework. The legislation includes provisions against discrimination based on nationality,[5] stipulates the right to migrate,[6] and recognises the right to education and medical assistance to people without discrimination and regardless of their immigration status.[7]

Argentina has traditionally addressed undocumented migration through regularisation rather than securitisation.[8] These policies have been lauded in international fora, including the UN Universal Periodic Review.[9] The 2006 “Patria Grande” (Programa Nacional de Normalización Documentaria Migratoria) initiative, which aimed to regularise undocumented migrants and refugees from other MERCOSUR countries, has been particularly touted as an example of good practice.[10]

In 2016, shortly after elections that ushered in a conservative government, the country initiated an important shift in its stance towards migration, announcing the opening of Argentina’s first immigration detention facility.[11] The government stated that the facility would not be a prison “but rather a ‘retention’ facility to deprive people of their liberty as they await deportation [and] that this was for the detainees’ own good, separating them from criminal prisoners and giving them better protection.”[12]

Despite the widely criticised move, the “retention” facility was never opened. Even before the government had announced its intention to open the facility, the National Penitentiary Office had reported that detention measures for immigration-related reasons were only very rarely applied, raising questions about why the facility was conceived in the first place.[13]

The government followed up with a series of controversial reforms, including most notably a 2017 decree (Decreto de Necesidad y Urgencia 70/2017 – Decree of Necessity and Urgency (DNU)) modifying the country’s migration law. Representing a sharp departure from Argentina’s traditional emphasis on integrating migrants, the decree restricted the rights of migrants by, inter alia, introducing impediments to entry into the country as well as accelerating expulsion proceedings. For instance, Article 4 of the DNU, amending Articles 29 and 69 of the NML, establishing that the “omission to declare the existence of criminal records or sentences” may result in denying admission or stay or cancelling residency.[14] Observers, including the Committee on Migrant Workers, have expressed concerns regarding the decree, in particular regarding expedited expulsions.[15] As of late 2019, the constitutionality of the decree was being challenged in Argentina’s Supreme Court,[16] largely on the basis that the reasons cited by the government in enacting the decree via special summary procedure, did not satisfy the “necessity and urgency” requirements provided by Article 99(3) of the Argentinean Constitution.[17]

In December 2019, a new government took office and the new President, Alberto Fernández, questioned the DNU enacted by his predecessor. In particular, he stated that the DNU “authorises expulsions without convictions and that this is very dangerous as it can become an act of persecution against a population.” However, at that stage Fernández had not yet discussed the issue with the Ministry of Security (although planned on doing so shortly).[18]

With the onset of the Covid-19 crisis in early 2020, Argentina closed its borders to both nationals and non-nationals. There have been some reports that authorities in parts of the country began exceptional measures to force migrants out of their provinces and to step up apprehensions of people in border areas.[19]

 

2.    LAWS, POLICIES, PRACTICES

2.1 Key norms. Argentina’s legal norms relating to immigration detention are contained in several pieces of legislation: the National Migration Law (NML); National Decree N 616/2010, approving the Regulation of the National Migration Law (RNML) (“Decreto Nacional 616/2010, Decreto Reglamentario de la Ley 25.871 sobre política migratoria Argentina”); Habeas corpus procedure law, (“Ley N 23.098, Procedimiento de Habeas Corpus”); the Penal Code, Law 11.179 (“Código Penal de la Nación Argentina, Ley 11.179”); and the 2017 Decree of Necessity and Urgency (Decreto de Necesidad y Urgencia 70/2017 - DNU), amending certain provisions of the NML.

Experts contend that Argentinian law provides a comparatively far-reaching definition of detention as it includes “all types of procedures in which a person’s freedom of movement is restricted.”[20] Article 43 of the Argentinean Constitution (Constitución de 1994) provides that the habeas corpus procedure is applicable when, inter alia, the right to physical freedom is affected, restricted, altered, or threatened (“Cuando el derecho lesionado, restringido, alterado o amenazado fuera la libertad física (…) la acción de habeas corpus podrá ser interpuesta”).

On the other hand, the use of the euphemism “retention” to denote immigration detention in Argentinian law may reflect a lack of clarity about the impact and legal significance of administrative immigration detention, which could jeopardise people’s ability to access critical rights and protections. The term was first coined in France to denote that county’s immigration detention measures, which have been the subject of considerable criticism.[21]

2.2 Grounds for detention. Under the NML and the RNML, as amended by the DNU, there are three grounds for imposing detention measures: (1) individuals may be ordered to “remain in facilities at the entry point” when “there are reasonable grounds to suspect that the person’s intention to enter the territory differs from that manifested at the time of obtaining the visa or presenting before immigration control” (i.e. illegal entry) (“Cuando existiera la sospecha fundada que la real intención que motiva el ingreso difiere de la manifestada al momento de obtener la visa o presentarse ante el control migratorio … deberá permanecer en las instalaciones del punto de ingreso”) (Article 35); and detention can also be used as an exceptional measure (2) to enforce an order of expulsion or (3) to prevent absconding during adjudication procedures in cases where an expulsion order is not firm (i.e. expulsion orders with outstanding appeals) (Article 70).

The RNML (Article 70) clarifies that in the latter case, the detention request must contain a “precise description of the factors giving rise to the situation, provide documentary evidence corroborating these, and indicate the duration required.”[22] The law further stipulates that where the “retention” request is accepted, the migration authority must present a report to the intervening judicial body every 10 days detailing the progress of the administrative procedure as well as the reasons that justify maintaining the retention measure. In addition, to determine whether there is a risk that the person will not comply with the expulsion order, the following factors will be considered:  

  • Integration; determined by a person’s domicile, habitual residence, location of their family and business or work.
  • The circumstances and nature of the fact for which the foreigner’s expulsion is being ordered.
  • The foreigner’s behaviour during the administrative proceedings preceding the expulsion order, to the extent that it indicates their willingness to accept the final decision, and in particular, if they have hidden information about their identity or residence or have presented false information.

Grounds for expulsion may be divided into the following groups: (1) failure to regularise one’s immigration status within a given set of time (NML, Article 61); (2) cancelation of a residence permit for reasons listed under Article 62 of the NML, as amended by Article 6 of the DNU; and (3) expulsion of foreigners serving prison sentences (extranjeros que se encontraren cumpliendo penas privativas de libertad”) (NML, Article 64).

The 2014 Criminal Procedure Code (“Código Procesal Federal, aprobado por la Ley N 27.063”), which came into force in 2017, introduces an additional circumstance that may lead to expulsion. Article 35 provides for situations where there would be a suspension of prosecution (“suspensión del proceso a prueba”). It is applicable to foreigners caught committing a crime (“flagrancia de un delito”) and provides for their expulsion in such a situation. 

 2.3 Asylum seekers. Law 26.165 on the Recognition and Protection of Asylum Seekers (“Ley 26.165, Ley General de Reconocimiento y Protección al Refugiado”) regulates the asylum process in Argentina and provides rights for refugees and asylum seekers. While legal principles such as non-refoulement and family unity are explicitly recognised in the text, detention is not mentioned.[23] Argentina has also ratified the 1951 UN Convention Relating to the Status of Refugees in 1961 and its accompanying protocol in 1967.[24] Although Argentina is not a signatory to the Cartagena Declaration on Refugees, Law 26.165 is in line with international standards of protection, including the extended refugee definition in the this Declaration.

In September 2016, at the Leader’s Summit on Refugees, then-President Mauricio Macri announced that Argentina would receive 3,000 Syrians through the “Programa Siria,”[25] which was put in place through “Disposición 1025/2019.”[26] This programme grants humanitarian visas to those affected by conflict in Syria if there is a sponsor in Argentina willing to help meet their living expenses for the first year.[27]

2.4 Children. Argentina has advised the Committee on Migrant Workers that the NDM does not hold any records indicating that they have ever detained minors for immigration-related reasons. They have also indicated that they do not have instructions to detain minors, given that Argentina’s national policy does not require them to be detained.[28]

2.5 Length of detention. Although Argentinian law establishes time limits for holding people in immigration-related detention, there have been cases of immigration detention in which periods of detention for deportation exceeded these limits.

Article 70 of the NML, as amended by Article 21 DNU, states that in all cases, the duration of administrative detention should not exceed that which is strictly necessary to carry out expulsion (“En todos los casos el tiempo de retención no podrá exceder el estrictamente indispensable para hacer efectiva la expulsión del extranjero”).

The RNML of 2010 clarified that in expulsion cases, the National Direction of Migration (“Dirección Nacional de Migraciones”) (NDM) could request detention for an initial period of 15 days, which could be extended for a further 30 days. In these circumstances, the NDM had to report, every 10 days, the measures undertaken to enforce expulsion and the reasons justifying the detention.[29] As a consequence, the maximum duration of immigration detention under this law was 45 days.

Despite this provision, there have been instances in which people were been detained beyond this time limit, including a case from 2016 when four Chinese nationals were detained for nearly four months while awaiting their expulsion.[30] Between 2014 and 2015, a South African national was detained for six months at the Unidad 31 Prison (“Centro de Detención de Mujeres”) prior to her deportation. The NDM only agreed to pay for her flight from Argentina to Brazil and asked her to pay for her ticket from Brazil to South Africa. The National Penitentiary Office submitted a writ of habeas corpus, which subsequently led the NDM to pay for a ticket for the individual.[31]

The 2017 decree, the DNU, alters these provisions in key ways. Article 21, amending Article 70 of the NML, extends the duration of detention for individuals whose expulsion orders are firm (i.e. expulsion orders with no remaining appeals). It provides for an initial detention period of 30 days, which can be extended for a further 30 days via judicial authorisation. In effect, this extends the maximum duration to 60 days, without the need to specify the reasons for making such detention necessary.[32]

In cases of detention without a firm expulsion order, the DNU provides that the duration of detention will be that which is strictly necessary to affect the expulsion. However, where an individual challenges an immigration detention decision via administrative or judicial action, duration of detention will be extended until the action is resolved (“Las acciones o procesos recursivos suspenderán el cómputo del plazo de retención hasta su resolución definitiva”). In other words, the length of detention may theoretically be extended indefinitely until the resolution of the administrative or judicial actions.

Article 21 of the DNU, amending Article 70 of the NML, provides for the application of detention measures from the beginning of an immigration procedure, before deportation has been ordered. The provision mentions that such detention should only be requested when the characteristics of the case justify the measure (“Excepcionalmente cuando las características del caso lo justifiquen, la Dirección Nacional de Migraciones podrá solicitar a la autoridad judicial la retención preventiva del extranjero aun cuando la orden de expulsión no se encuentre firme”). However, the DNU does not specify which characteristics are to be established in justifying the measure.

2.6 Procedural standards. The Argentinean Constitution (Constitución de 1994) provides basic guarantees for all inhabitants of the country, including protection against arbitrary detention and the right to judicial remedies, among other guarantees (Articles 14, 18, 43). Article 20 explicitly states that foreigners enjoy the same rights as citizens.

According to Article 70 of the NML as amended by Article 21 of the DNU, the judiciary must intervene when ordering detention. Detention must be requested by the NDM and has to be authorised by the competent Court.

Article 86 of the NML, as amended by Article 24 of the DNU, grants foreigners the right to free legal assistance in administrative and judicial procedures that may lead to a refusal of entry, an order of expulsion, and return to their country of origin. The provision also grants foreigners access to interpretation services if they do not understand or speak the official language. The Public Ministry of Defense (“Ministerio Publico de la Defensa”) includes a specialised legal service in immigration matters, which provides free legal assistance.[33]

The DNU, however, introduced some limitations to procedural standards. Article 24 provides that an expulsion process may continue without the provision of legal aid in cases where a person does not request the provision of legal assistance or fails to demonstrate a lack of economic resources. It also narrows the scope of free legal aid by limiting it to procedures that may lead to expulsion or that may lead to the denial of legal residence.[34]

In addition, the DNU (Articles 14 and 16 modifying Article 69 of the NML) has reduced the time frames in which a foreigner may challenge an expulsion order and court ruling. While previous regulations provided 15 and 30-day deadlines, individuals now have just three days to present their appeal. Such a reduction has drastically increased the pressure placed on persons in deportation proceedings to organise an effective defence.[35]

According to Article 13 of the DNU, modifying Article 69 of the NML, a detainee has the right to view their case file (“el interesado tiene derecho a tomar vista del expediente”) within three days. Requests to view case files suspend the timeframe to challenge an expulsion order and a court ruling.

The Migrant Commission (“Comisión del Migrante”), which functions under the Public Ministry of Defense and whose role is to defend and protect the rights of foreign nationals[36] by, inter alia, offering free juridical assistance and information, intervenes on behalf of foreign nationals in administrative expulsion proceedings.[37]

2.7 Non-custodial measures (“alternatives to detention”). Argentinean law does not specifically mention a requirement to assess “alternatives to detention” or non-custodial measures before issuing a detention order. However, Article 71 of the NML provides for bail in situations where the removal of the foreign national cannot be executed within a reasonable period of time or where there are reasons justifying the measure (“la autoridad de aplicación podrá disponer de su libertad provisoria bajo caución … cuando no pueda realizarse la expulsión en un plazo prudencial o median causas que lo justifiquen”). In addition, such a measure must be communicated to the competent Federal Judge. As clarified by the RNML, the foreigner must appear before the immigration authority when required as failing to do so could lead to the revocation of bail (“el extranjero deberá comparecer ante la autoridad migratoria cuando así le sea requerido, bajo apercibimiento de revocarse la libertad provisional otorgada”).  

Further, under Article 70 of the RNML, the Interior Ministry or the NDM may refrain from requesting the detention of foreign nationals if they demonstrate that they will abide by an expulsion order and leave the country within 72 hours, and provided that there are no indications that they will not comply with the order (“podrán abstenerse de solicitar la retención … cuando el interesado acredite debidamente que cumplirá con la orden de expulsión en un plazo no superior a setenta y dos (72) horas de haber quedado firme la medida y no existan circunstancias objetivas que hagan presumir que eludirá la orden”). The same factors as those listed above in terms of determining the risk of absconsion are also applicable in this regard (see 2.2 Grounds for detention).

2.8 Detaining authorities. Argentina does not have a specialised immigration police force. Article 72 of the NML states that “retention” is to be executed by the “Auxiliary Migration Police,” which include a range of security forces. According to Article 114 of the NML, the Auxiliary Migration Police will be comprised of: the Naval Prefecture (“Prefectura Naval Argentina”), the National Gendarmerie (“Gendarmería Nacional Argentina”), the National Aeronautical Police (“Policía Aeronáutica Nacional”) and the Federal Police (“Policía Federal”).

2.9 Regulation of detention conditions and regimes. The RNML (Article 72) provides that the accommodation of detained foreigners must be conducted in “adequate spaces, separated from penal prisoners, and in particular taking into account their family situation” (“El alojamiento de los extranjeros retenidos deberá hacerse en ámbitos adecuados, separados de los detenidos por causas penales, teniéndose particularmente en cuenta su situación familiar”). In exceptional cases, the NDM may accommodate immigration detainees in “private spaces” under the custody of security forces empowered to enforce migration measures.  

Article 72 further stipulates that the NDM will request the intervention of the competent health authority so that the retention of foreigners suffering from psychophysical impairments or requiring specialised or continuous medical care is appropriate.

2.10 Domestic monitoring. Although immigration detention is not a common practice in Argentina, official and non-governmental entities that attempt to monitor relevant practices. In November 2004, Argentina ratified the Optional Protocol to the Convention against Torture (OPCAT) and in November 2012, it designated the National Penitentiary Office (Ombudsman Institution) as National Preventive Mechanism (NPM) through Law 26.827 (“Ley 26.827, Mecanismo Nacional de Prevención de la Tortura y Otros Tratos o Penas Crueles, Inhumanos o Degradantes”). The National Penitentiary Office, through its annual reports, reviews the human rights situation of persons deprived of liberty in Argentinean prisons. The reports mention “foreigners in prison,” review newly passed legislation in the area, and provide details on detention centres.

The System of Coordination and Monitoring of Judicial Control of Prison Units (“Sistema de Coordinación y Seguimiento de Control Judicial de Unidades Carcelarias”)—which is made up of federal and national judges; the Attorney General’s Office represented by the Office of Institution Violence (“Procuraduría de Violencia Institucional”); the Public Ministry of Defence (“La Defensoría General de la Nación”); the National Penitentiary Office; and as consultative members: the Public Bar Association (“El Colegio Público de Abogados de Capital Federal”); the Centre for Legal and Social Studies (“El Centro de Estudios Legales y Sociales”) (CELS); the Criminal Thought Association (“la Asociación Pensamiento Penal”) and the Commission for the Memory of the Province of Buenos Aires (“la Comisión por la Memoria de la Provincia de Buenos Aires”)—also conducts prison inspections and publishes reports on its website.[38]

2.11 International monitoring. Having ratified the OPCAT, Argentina receives visits from the UN Subcommittee on the Prevention of Torture (SPT). In April 2012, the SPT visited Argentina and noted that “torture and ill-treatment constitute a situation of structural violence in places of incarceration and are practices that are deeply rooted in the behaviour of prison staff in Argentina.”[39] The SPT noted the existence of registers of torture at the federal and provincial levels as a positive development, and recommended that Argentina take a series of measures to prevent torture. In March 2019, the subcommittee announced that it would visit Argentina during the year.[40]  However, on 10 March 2020, one day after the start of the visit, the SPT delegation suspended its visit to Argentina in view of the Covid-19 crisis. The head of the delegation stated that the SPT would resume its visit to Argentina as soon as conditions would allow, especially given their concerns regarding “the challenges the country faces with regard to the prevention of torture, ill-treatment and conditions of detention.”[41]

Argentina has also been subject to comments by the Committee against Torture in relation to the DNU. In particular, the committee has expressed concern that the decree makes it difficult for persons subject to expulsion to demonstrate eligibility for free legal aid as they must show beyond reasonable doubt that they lack economic resources.[42]

Since 1968, Argentina has also been a party to the International Convention on the Elimination of All Forms of Racial Discrimination. In 2017, the Committee on the Elimination of Racial Discrimination (CERD) expressed concern regarding Argentina’s intention to “set up a detention centre for migrants awaiting deportation because it could lead to detention not being used as a last resort.”[43]

2.12 Trends and statistics. The NDM does not publish data relating to the number of persons it detains or expels. Nonetheless, the GDP was informed by the National Penitentiary Office that given this absence of information, a database (“Detenciones Migratorias”) was created in 2018 to record immigration detention data. The information recorded on the database concerns the period of August 2017 up to October 2018—although the National Penitentiary Office has advised that the information recorded does not represent the total number of immigration detainees but rather an approximation. From August 2017 to October 2018, there were 99 individuals apprehended by migration authorities. Of these however, 56 percent involved detention whereas in the other cases, individuals were apprehended and expelled from the country. 38 percent of apprehended individuals were of Chinese origin; 30 percent of Latin-American origin, and 28 percent were of Senegalese origin. Reportedly, of these cases only one individual was released as a result of having an open asylum claim. In the remaining 98 cases, individuals were removed.[44]

According to information provided to the GDP by the National Penitentiary Office, in July 2019 there were 2,663 foreign nationals in federal prisons in Argentina, which amounts to 19 percent of the total federal prison population.[45] Within this population, 63 percent are prisoners on remand while only 37 percent have been convicted. In terms of nationality, 96 percent of these prisoners are from South American countries—726 from Peru, 693 from Paraguay, 558 from Bolivia, and 153 from Colombia.

 

3.    DETENTION INFRASTRUCTURE

3.1 Summary. Although the Regulation of the National Migration Law (RNML) explicitly states that immigration detention must take place in “adequate spaces, separated from penal prisoners,” Argentina does not have a dedicated immigration detention centre. As a result, officials make use of a range of other facilities including prisons, police stations, and transit zones in airports. Administrative immigration detention is conducted “in spaces of the various security forces that operate as auxiliary migratory police,”[46] which include the Federal Police, the National Aeronautical Police, the Naval Prefecture, and the National Gendarmerie.

In 2016, the government announced plans to establish an immigration detention centre in Buenos Aires.[47] The decision, which was presented by the government as a measure to “accommodate and combat irregular migration,”[48] was heavily criticised by local and international human rights organisations. The facility, however, never appears to have been used. According to the 2017 Annual Report of the National Penitentiary Office, “the site was closed, no building works were being carried out and there was no authority present either from the security forces or from the National Migration Directorate.”[49] In their 2018 response to the UN Committee on Migrant Workers’ General Comment No. 5 on Migrants’ Human Right to Liberty and their Protection from Arbitrary Detention questionnaire, Argentina noted that the building would have to be completely renovated and reconditioned in order to be used for immigration detention purposes.[50]

Among the sites that have been used with some frequency for immigration detention purposes is a national gendarmerie unit located on the northeast border (“El Paso Internacional Bernardo de Irigoyen-Dionisio Cerqueira) connecting Argentina with Brazil.[51] Given that the unit is situated several kilometres from the border, it is thus not possible for the authorities to “push back” people denied entry.[52]

In March 2018, an inspection of the Centro Federal de Detencion de Mujeres was carried out by the System of Coordination and Monitoring of Judicial Control of Prison Units. It found that the kitchen sinks were cracked and leaking and that the bathrooms were in precarious conditions.[53] In addition, the general hygiene and maintenance of the centre was found to be deficient.[54]

The Covid-19 crisis highlighted the extreme situation in the country’s penitentiaries. On 13 March 2020, the International Observatory for Prisons—Argentina section—wrote to the Ministry of Justice urging authorities to implement measures to prevent the spread of the virus within penal institutions. The letter highlighted the current lack of hygiene products and food supplies, and called on the Ministry to develop a strategy to avoid riots and the spread of the disease.[55] On 23 and 24 March 2020 however, riots broke out in several penitentiaries, leaving five prisoners dead and many more injured.[56] In the wake of this, the International Observatory for Prisons expressed its concerns regarding the situation in Buenos Aires’ prisons in a letter addressed to the Supreme Court of Buenos Aires. The letter criticised the lack of measures to mitigate the current situation as well as the recourse to physical violence by security forces as a means to regain control.[57]

On 1 April 2020, the Ministry of Security and Justice and the Ministry of Health established a prevention protocol in the prisons of the Rio Grande province. According to this protocol, each prison will receive medication, sanitary products, and disinfectant. Also, every new arrival will be subject to a medical examination to identify any symptoms of Covid-19.[58]

3.2 List of immigration detention facilities. Unidad 31 – Centro Federal de Detención de Mujeres (Nuestra Señora del Rosario de San Nicolas); Escuadrón Seguridad Vital San Justo; Policía de Seguridad Aeroportuaria, Aeropuerto Internacional de Ezeiza (Ministro Pistarini International Airport); Centro de Alojamiento (Buenos Aires).

 


[1] The Global Detention Project would like to thank Paula Carello from Fundación Migra for her comments on an early version of this report. Any errors are those of the GDP.

[2] Organisation for Economic Cooperation and Development/ International Labour Organisation, “How Immigrants Contribute to Argentina’s Economy,” OECD Publishing, 2018, http://dx.doi.org/10.1787/9789264288980-en

[3] United Nations, Department of Economic and Social Affairs, Population Division, 2015.

[4] Organisation for Economic Cooperation and Development/ International Labour Organisation, “How Immigrants Contribute to Argentina’s Economy,” OECD Publishing, 2018, http://dx.doi.org/10.1787/9789264288980-en

[5] Article 13 of the NML

[6] Article 4 of the NML.

[7] Articles 6 and 7 of the NML.

[8] Centro de Estudios Legales y Sociales (CELS) and Comisión Argentina para Refugiados y Migrantes (CAREF), “Comentarios y Aportes a la versión revisada de fecha 23 de Julio del borrador de Declaración a ser adoptada en la Reunión de Alto Nivel para hacer frente a los grandes movimientos de refugiados y migrantes que tendrá lugar el 19 de Septiembre de 2016,” 23 July 2016,
www.cels.org.ar/common/AportesDeclaracionMigrantesRefugiados.pdf 

[9] Human Rights Council, “Report of the Working Group on the Universal Periodic Review, Argentina, A/HRC/22/4,” 12 December 2012, https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/AHRC224_English.pdf

[10] Human Rights Council, “Report of the Working Group on the Universal Periodic Review, Argentina, A/HRC/22/4,” 12 December 2012, https://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/AHRC224_English.pdf

[11] International Detention Coalition, “Argentina Proposes Creation of Immigration Detention Centre,” 3 September 2016, https://idcoalition.org/news/argentina-proposes-creation-of-immigration-detention-center/

[12] Global Detention Project, “Submission to the Universal Periodic Review: Argentina,” May 2017, https://www.globaldetentionproject.org/submission-to-the-universal-periodic-review-upr-argentina-2

[13] The report stated that between 2013 and 2015, there were 157 immigration detention orders, of which, only 62 were executed. See: Procuración Penitenciaria de la Nación, “La situación de los derechos humanos en las cárceles federales de la Argentina, Informe Anual 2014,” ppn.gov.ar/sites/default/files/INFORME%20ANUAL%20PPN%202014_0.pdf

[14] L. García, “Argentina’s Migration Law: Changes Challenging the Human Right to Migrate,” Border Criminologies, 11 September 2017, https://bit.ly/2PsTwcR

[15] Committee on the Rights of Migrant Workers, “Committee on Migrant Workers Raise Concerns About Expedited Expulsions in Dialogue with Argentina,” OHCHR, 3 September 2019, https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24943&LangID=E

[16] Procuración Penitenciaria de la Nación, “La situación de los derechos humanos en las cárceles federales de la Argentina, Informe Anual 2017,” https://www.ppn.gov.ar/pdf/publicaciones/Informe-anual-2017.pdf

[17] Procuración Penitenciaria de la Nación, “La Cámara Contencioso Administrativo Federal hace lugar al amparo colectivo y declara la inconstitucionalidad del DNU N°70/2017 que regula materia migratoria,” 27 March 2018, https://bit.ly/2qr9lYJ

[18] Infobae, “Alberto Fernández cuestionó el decreto de Macri para expulsar a extranjeros que delinquen: No se debe castigar solo por la presunción,” 24 January 2020, https://www.infobae.com/politica/2020/01/24/alberto-fernandez-cuestiono-el-decreto-de-macri-para-expulsar-a-extranjeros-que-delinquen-no-se-debe-castigar-solo-por-la-presuncion/

[19] Participant Comments, “Listening Session of UN Network on Migration about Impact of Covid-19,” Reported by Katie Welsford (Global Detention Project), 1 April 2020.

[20] Oxford Pro Bono Publico, “Remedies and Procedures on the Right of Anyone Deprived of his or her Liberty by Arrest or Detention to Bring Proceedings Before a Court: A Comparative and Analytical Review of State Practice,” Oxford University Faculty of Law, April 2014, http://ohrh.law.ox.ac.uk/wordpress/wp-content/uploads/2014/05/2014.6-Arbitrary-Detention-Project.pdf.

[21] C. Richard and N. Fischer, “A Legal Disgrace? The Retention of Deported Migrants in Contemporary France,” Social Science Information, 47(4), 2010; M. Grange, “Smoke Screens: Is There a Correlation between Migration Euphemisms and the Language of Detention,” Global Detention Project Working Paper No. 5, 2013, https://www.globaldetentionproject.org/smoke-screens-is-there-a-correlation-between-migration-euphemisms-and-the-language-of-detention

[22] RNML, Article 70: “En tal caso la solicitud de retención que se remita a la autoridad judicial deberá efectuar una descripción precisa de las pautas que acrediten tal situación, acompañar los elementos documentales, si los hubiere, que las corroboren, e indicar el plazo de duración requerido.

[23] InfoLeg, "Ley 26.165, Ley General de Reconocimiento y Protección al Refugiado," 28 November 2006, http://servicios.infoleg.gob.ar/infolegInternet/anexos/120000-124999/122609/norma.htm

[24] UN High Commissioner for Refugees (UNHCR), “States Parties to the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol,” https://www.unhcr.org/protect/PROTECTION/3b73b0d63.pdf

[25] UN High Commissioner for Refugees (UNHCR), “Argentina Fact Sheet,” August 2018, https://www.acnur.org/5b991fcf4.pdf

[26] Argentina.gob, “Disposición 1025/2019, DI-2019-1025-APN-DNM#MI,” 27 February 2019, https://www.argentina.gob.ar/sites/default/files/disposicion_1025_2019_0.pdf; For more information see: UN High Commissioner for Refugees (UNHCR), “ACNUR Celebra los Avances del Nuevo Marco Normativo del Programa Siria,” 20 March 2019, https://www.acnur.org/noticias/noticia/2019/3/5c944ed44/acnur-celebra-los-avances-del-nuevo-marco-normativo-del-programa-siria.html

[27] F. Bernas, “Syrian Refugees Reap Benefits of Argentina’s New Visa Rules,” UNHCR, 10 November 2017, https://www.unhcr.org/uk/news/stories/2017/11/5a0586774/syrian-refugees-reap-benefits-argentinas-new-visa-rules.html

[28] Office of the High Commissioner for Human Rights (OHCHR), “Argentina’s Response to the UN Committee on Migrant Workers General Comment No. 5 on Migrants’ Human Right to Liberty and their Protection from Arbitrary Detention questionnaire,” December 2018, https://www.ohchr.org/EN/HRBodies/CMW/Pages/GC5.aspx

[29] Procuración Penitenciaria de la Nación, “La situación de los derechos humanos en las cárceles federales de la Argentina, Informe Anual 2017,”  https://www.ppn.gov.ar/pdf/publicaciones/Informe-anual-2017.pdf

[30] Procuración Penitenciaria de la Nación, “La Cámara Federal de Casación fallo a favor de ciudadanos extranjeros detenidos por solicitud de la Dirección Nacional de Migraciones,” 12 September 2016, https://bit.ly/2qZyOZD.

[31] Procuración Penitenciaria de la Nación, “La acción de habeas corpus presentada por la PPN logro que se efectivice la expulsión de una ciudadana sudafricana que sufría una demora de 6 meses,” February 2015, https://bit.ly/35mkb1p

[32] Procuración Penitenciaria de la Nación, “La situación de los derechos humanos en las cárceles federales de la Argentina, Informe Anual 2017,” https://www.ppn.gov.ar/pdf/publicaciones/Informe-anual-2017.pdf

[33] Office of the High Commissioner for Human Rights (OHCHR), “Argentina’s Response to the UN Committee on Migrant Workers General Comment No. 5 on Migrants’ Human Right to Liberty and their Protection from Arbitrary Detention questionnaire,” December 2018, https://www.ohchr.org/EN/HRBodies/CMW/Pages/GC5.aspx

[34] Global Detention Project, “Submission to the Universal Periodic Review: Argentina,” May 2017, https://www.globaldetentionproject.org/submission-to-the-universal-periodic-review-upr-argentina-2

[35] Global Detention Project, “Submission to the Universal Periodic Review: Argentina,” May 2017, https://www.globaldetentionproject.org/submission-to-the-universal-periodic-review-upr-argentina-2

[36] Ministerio Publico de la Defensa, “Resolución N 1858/08 de la Defensoría General de la Nación,” https://www.mpd.gov.ar/pdf/migrante/res%20DGN%201858_2008.PDF

[37] Ministerio Publico de la Defensa, “Comisión del Migrante,” https://www.mpd.gov.ar/index.php/programas-y-comisiones-n/56-comision-del-migrante

[38] Sistema de Coordinación y Seguimiento de Control Judicial de Unidades Carcelarias, “Inspecciones,” http://sistemacontrolcarceles.gob.ar/inspecciones_/

[39] Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment, “Report of the Visit of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, CAT/OP/ARG/1,” 27 November 2013, https://bit.ly/35azACY

[40] Office of the High Commissioner for Human Rights (OHCHR), “UN Torture Prevention Body to Visit Argentina, the State of Palestine, and Sri Lanka in 2019,” 8 March 2019, www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24286&LangID=E

[41] Office of the High Commissioner for Human Rights (OHCHR), “UN Torture Prevention Body Suspends Argentina Visit over Covid-19 Concerns. Postpones Scheduled Visits to Bulgaria, Australia and Nauru,” 11 March 2020, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25710&LangID=E

[42] UN Committee against Torture (CAT), “Concluding Observations on the Combined Fifth and Sixth Periodic Reports of Argentina, CAT/C/ARG/CO/5-6,” 24 May 2017, https://bit.ly/3cSidth

[43] UN Committee on the Elimination of Racial Discrimination (CERD), “Concluding Observations on the Combined Twenty-First to Twenty-Third Periodic Reports of Argentina, CERD/C/ARG/CO/21-21,” 11 January 2017, https://bit.ly/2VZkZG4

[44] Procuración Penitenciaria de la Nación, “Informe de la Procuración Penitenciaria de la Nación para Global Detention Project (Ginebra, Suiza),” 12 November 2019.

[45] Procuración Penitenciaria de la Nación, “Informe de la Procuración Penitenciaria de la Nación para Global Detention Project (Ginebra, Suiza),” 12 November 2019.

[46] Procuración Penitenciaria de la Nación, “La situación de los derechos humanos en las cárceles de la nación,” Informe Anual 2018, https://ppn.gov.ar/pdf/publicaciones/Informe-anual-2018.pdf

[47] La Nación, “Genera polémica la apertura de un centro para alojar a infractores de la ley de migraciones,” 26 August 2016, https://www.lanacion.com.ar/buenos-aires/genera-polemica-la-apertura-de-un-centro-para-alojar-a-infractores-de-la-ley-de-migraciones-nid1931902

[48] L. Rosende, “El gobierno creo un centro de detención de migrantes: alarma entre organismos de DDHH,Política Argentina, 28 August 2016, https://www.politicargentina.com/notas/201608/16208-el-gobierno-creo-un-centro-de-detencion-de-migrantes-alarma-entre-organismos-de-ddhh.html

[49] Procuración Penitenciaria de la Nación, “La situación de los derechos humanos en las cárceles federales de la Argentina,” Informe Anual 2017, https://www.ppn.gov.ar/pdf/publicaciones/Informe-anual-2017.pdf

[50] Office of the High Commissioner for Human Rights (OHCHR), “Argentina’s Response to the UN Committee on Migrant Workers General Comment No. 5 on Migrants’ Human Right to Liberty and their Protection from Arbitrary Detention questionnaire,” December 2018, https://www.ohchr.org/EN/HRBodies/CMW/Pages/GC5.aspx

[51] Procuración Penitenciaria de la Nación, “La situación de los derechos humanos en las cárceles de la nación,” Informe Anual 2018, https://ppn.gov.ar/pdf/publicaciones/Informe-anual-2018.pdf

[52] Procuración Penitenciaria de la Nación, “Informe Alternativo de la Procuración Penitenciaria de la Nación Argentina ante el Comité de Protección de los Derechos de todos los Trabajadores Migratorios y de sus familias,” September 2019.

[53] Sistema de Coordinación y Seguimiento de Control Judicial de Unidades Carcelarias, “Informe de monitoreo: Complejo penitenciario Federal IV – Ezeiza,” 12 March 2018, https://bit.ly/2rvIonv

[54] Sistema de Coordinación y Seguimiento de Control Judicial de Unidades Carcelarias, “Informe de monitoreo: Complejo penitenciario Federal IV – Ezeiza,” 12 March 2018, https://bit.ly/2rvIonv

[55] Prison Insider, “Coronavirus: la fièvre des prisons,” 18 March 2020, https://www.prison-insider.com/articles/ameriques-coronavirus-la-fievre-des-prisons#argentine-5e8212e5358c9

[56] Notimerica, “Coronavirus - Cinco muertos por motines en cárceles de Argentina para exigir mayor protección ante el coronavirus,” 24 March 2020, https://bit.ly/3aDYTz3l

[57] Prison Insider, “Coronavirus: la fièvre des prisons,” 18 March 2020, https://www.prison-insider.com/articles/ameriques-coronavirus-la-fievre-des-prisons#argentine-5e8212e5358c9

[58] NoticiasNet, “Refuerzan los Controles Sanitarios en las Cárceles,” 4 April 2020, https://www.noticiasnet.com.ar/nota/2020-4-4-20-48-0-refuerzan-los-controles-sanitarios-en-las-carceles

IMMIGRATION AND DETENTION-RELATED STATISTICS

Total number of immigration detainees by year
Not Available
2019
Number of immigration detainees on a given day
Not Available
2019
Total number of detained minors
Not Available
2017
Number of dedicated long-term immigration detention centres
1
2016
Number of deportations/forced returns only
703
2018
495
2017
323
2016
Percentage of persons removed in relation to total number of people placed in removal procedures
99
2018
Criminal prison population
72,693
2015
64,288
2013
62,263
2012
60,789
2011
60,611
2008
63,357
2005
57,632
2002
35,808
1998
25,852
1995
21,016
1992
Percentage of foreign prisoners
6.2
2015
5.4
2013
5.8
2012
Prison population rate (per 100,000 of national population)
167
2015
154
2013
149
2012
147
2011
151
2008
163
2005
152
2002
99
1998
74
1995
62
1992
Population
45,200,000
2020
43,417,000
2015
41,100,000
2012
International migrants
2,212,879
2019
2,086,000
2015
1,885,700
2013
International migrants as a percentage of the population
4.8
2015
4.5
2013
Refugees
3,857
2019
3,468
2018
3,360
2017
3,222
2016
3,207
2015
3,415
2014
Ratio of refugees per 1000 inhabitants
0.08
2016
0.08
2014
0.08
2013
0.09
2012
Total number of new asylum applications
3,842
2019
2,661
2018
1,924
2017
1,871
2016
831
2014
1,922
2013
1,467
2012
Refugee recognition rate
26.6
2015
25
2012
Stateless persons
0
2016
0
2014
Top nationalities of detainees
Number of persons granted alternatives to immigration detention
Number of detained asylum seekers
Number of detained unaccompanied minors
Number of detained accompanied minors
Number of detained stateless persons
Number of apprehensions of non-citizens
Immigration detainees as a percentage of total international migrant population
Estimated total immigration detention capacity
Estimated capacity of dedicated long-term immigration detention centres
Number of dedicated medium-term immigration detention centres
Number of immigration offices
Number of transit facilities
Number of criminal facilities
Number of ad hoc facilities
Number of persons removed/returned (voluntary returns and deportations)
Estimated number of undocumented migrants

SOCIO-ECONOMIC INDICATORS

Gross Domestic Product per capita (in USD)
12,509
2014
14,760
2013
Remittances to the country
540,400
2014
688
2011
Remittances from the country
1,033
2010
Unemployment Rate
2014
Net official development assistance (ODA) (in millions USD)
49.2
2014
Human Development Index Ranking (UNDP)
49 (Very high)
2014
40 (Very high)
2014
Pew Global Attitudes Poll on Immigration
68
2007
Unemployment rate amongst migrants
Detention for deterrence
Immigration Index Score
World Bank Rule of Law Index
Domestic Opinion Polls on Immigration

DOMESTIC LAWS AND POLICIES

Legal tradition
Civil law
2016
Constitutional guarantees?
Yes (Articles 18 and 43) 1994
Core pieces of national legislation
Regulation of the National Migration Law (Decree 616/2010) - Reglamentación de la Ley de Migraciones Nº 25.871 y sus modificatorias (Decreto 616/2010) (2010)
2010
Decree of Necessity and Urgency (No. 70/2017), Migration, modifying the National Migration Act (No. 25.871) - Decreto de Necesidad y Urgencia (No. 70/2017), Migraciones, Modificación de la Ley de Migraciones (No. 25.871) (2017)
2017
National Migration Act (No. 25.871) - Ley de Migraciones (No. 25.871) (2004) 2017
2004
Regulations, standards, guidelines
Manual de Procedimiento: Retencion Judicial de Extranjeros (2015)
2015
Immigration-status-related grounds
Detention to prevent unauthorised entry at the border
2016
Detention to prevent absconding
2016
Detention to effect removal
2015
Maximum length for administrative immigration detention in law.
45
2015
Provision of basic procedural standards
Right to legal counsel (Yes)
2017
Access to free interpretation services (Yes)
2017
Access to consular assistance (Yes)
2016
Right to appeal the lawfulness of detention (Yes)
2016
Independent review of detention (Yes)
2016
Information to detainees (Yes)
2010
Types of non-custodial measures
Release on bail (Yes) infrequently
2015
Supervised release and/or reporting (Yes) infrequently
2015
Is the detention of vulnerable persons provided in law? Are they detained in practice?
Accompanied minors (Not mentioned)
2016
Pregnant women (Not mentioned)
2016
Unaccompanied minors (Not mentioned)
2016
Asylum seekers (Not mentioned)
2016
Elderly (Not mentioned)
2016
Persons with disabilities (Not mentioned)
2016
Refugees (Not mentioned)
2016
Stateless persons (Not mentioned)
2016
Survivors of torture (Not mentioned)
2016
Women (Not mentioned)
2016
Victims of trafficking (Not mentioned)
2016
Mandatory detention
No ()
2016
Expedited/fast track removal
No
2016
Re-entry ban
Yes
2017
Yes
2016
Additional legislation
Non-immigration-status-related grounds providing for administrative detention in immigration legislation.
Does the country provide specific criminal penalties for immigration-related violations?
Grounds for criminal immigration-related detention/incarceration and maximum potential duration of incarceration
Has the country decriminalized immigration-related violations?
Longest recorded instance of immigration detention.
Maximum length of time in custody prior to issuance of a detention order
Average length of detention
Maximum length of detention for asylum-seekers
Maximum length of detention for persons detained upon arrival at ports of entry
Impact of alternatives

INTERNATIONAL LAW

International treaties
Ratification Year
Individual complaints procedure
Acceptance Year
CRC, [Third] Optional Protocol to the UN Convention on the Rights of the Child establishing a communications procedure, 2011 2015
2015
ICESCR, Optional Protocol to the International Covenant on Economic, Social and Cultural Rights, 2008 2011
2011
ICPED, International Convention for the Protection of All Persons from Enforced Disappearance, declaration under article 31 2008
2008
CRPD, Optional Protocol to o the Convention on the Rights of Persons with Disabilities 2008
2008
CEDAW, Optional Protocol to the Convention on the Elimination of Discrimination against Women, 1999 2007
2007
ICERD, declaration under article 14 of the Convention 2007
2007
CAT, declaration under article 22 of the Convention 1986
1986
ICCPR, First Optional Protocol to the International Covenant on Civil and Political Rights, 1966 1986
1986
Ratio of complaints procedures accepted
Observation Date
8/9
8/9
Relevant recommendations issued by treaty bodies
Recommendation Year
Committee against Torture 34. The State party should: (a) Ensure that no one may be expelled, returned or extradited to another State where there are substantial grounds for believing that he or she could face a personal and foreseeable risk of being subjected to torture, and refrain from accepting diplomatic assurance with regard to such persons; (b) Repeal or amend the provisions of the Decree of Necessity and Emergency No. 70/2017 in order to ensure that persons subject to expulsion may be granted enough time to challenge the decision at the administrative or judicial level and be given access to immediate free legal aid to appear before any court during the expulsion process; (c) Ensure that migration legislation and regulations allow for detention for migration-related reasons only as a measure of last resort, after less invasive alternative measures have been duly considered and exhausted, where it has been deemed necessary and proportionate and for as short a period as possible. The State party should also establish effective judicial oversight of orders for the detention of persons for migration-related reasons. 2017
2017
Committee against Torture 34. The State party should: (a) Ensure that no one may be expelled, returned or extradited to another State where there are substantial grounds for believing that he or she could face a personal and foreseeable risk of being subjected to torture, and refrain from accepting diplomatic assurance with regard to such persons; (b) Repeal or amend the provisions of the Decree of Necessity and Emergency No. 70/2017 in order to ensure that persons subject to expulsion may be granted enough time to challenge the decision at the administrative or judicial level and be given access to immediate free legal aid to appear before any court during the expulsion process; (c) Ensure that migration legislation and regulations allow for detention for migration-related reasons only as a measure of last resort, after less invasive alternative measures have been duly considered and exhausted, where it has been deemed necessary and proportionate and for as short a period as possible. The State party should also establish effective judicial oversight of orders for the detention of persons for migration-related reasons. 2017
2017
Committee against Torture 36. The State party should: (a) Issue clear instructions to the security forces at both federal and provincial level to observe the prohibition of discrimination against persons in detention and respect the dignity of such persons when they are subjected to a body search, in cases where such a search is strictly necessary and where there is no alternative; (b) Ensure that all cases of arbitrary detention, violence towards and ill-treatment of persons because of their foreign origin, sexual orientation or gender identity are investigated, with a view to prosecuting and punishing the perpetrators of such acts and suspending the officials involved; and (c) Ensure the adoption of policies and programmes specifically aimed at the integration and protection of persons detained on the basis of their sexual orientation or gender identity, at both federal and provincial level, and ensure full compliance with the Gender Identity Act No 26743. 2017
2017
Committee on the Elimination of Racial Discrimination 26. The Committee urges the State party to: [...] (c) Ensure effective access to justice and respect for fundamental rights and due process guarantees in proceedings against human rights defenders, members of indigenous communities, people of African descent and migrants, including the proceedings concerning Milagro Sala and Félix Díaz. In the case of Milagro Sala, the Committee invites the State party to implement the measures requested by the Working Group on Arbitrary Detention (A/HRC/WGAD/2016/31, para. 117). 2017
2017
Committee on the Elimination of Racial Discrimination 34. Taking into account its general recommendation No. 30 (2004) on discrimination against non-citizens, the Committee recommends that the State party take the necessary action to ensure the protection of migrants, including by: (a) Implementing measures that promote the full participation and integration of migrants into the State party and respect for their rights; and ensuring that no practices or provisions are introduced that represent a backward step compared with the regulatory framework in force; (b) Considering the use of alternatives to the deprivation of liberty for migrants in an irregular situation and ensuring that detention is used only as a last resort and that it is reasonable, necessary and proportionate and is kept as short as possible. 2017
2017
Regional legal instruments
Year of Ratification (Treaty) / Transposed (Directive) / Adoption (Regulation)
IACPPT, Inter-American Convention to Prevent and Punish Torture 1988
1988
ACHR, American Convention on Human Rights 1984
1984
APACHR, Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights 2003
2003
CBDP, Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belem do Para) 1996
1996
IACFDP, Inter-American convention on Forced Disappearance of Persons 1995
1995
Regional treaty reservations
Reservation Year
ACHR Article 5 1984
1984
ACHR Article 7 1984
1984
ACHR Article 10 1984
1984
Visits by special procedures of the Human Rights Council
Year of Visit
Observation Date
Special Rapporteur on freedom of religion or belief 2000
2000
2015
Working Group on arbitrary detention 2003
2003
2015
Special Rapporteur on trafficking in persons, especially in women and children 2010
2010
2015
Relevant recommendations by UN Special Procedures
Recommendation Year
Observation Date
Working Group on arbitrary detention §69. As far as possible, efforts should be made to avoid holding children or foreigners detained under the immigration laws in police stations. §75. An effective judicial remedy should be provided for administrative orders for the detention of foreigners with a view to their expulsion from the country. Any person detained for reasons related to immigration should have an opportunity to request a court to rule on the legality of his or her detention before the expulsion order is enforced. The current practice of detaining foreigners for reasons related to immigration together with individuals charged with ordinary offences should be halted. 2003
2003
2003
Relevant recommendations of the UN Universal Periodic Review
Observation Date
No 2008
2017
No 2012
Ratio of relevant international treaties ratified
International treaty reservations
Treaty bodies decisions on individual complaints
Regional judicial decisions on individual complaints
Recommendations issued by regional human rights mechanisms
Bilateral/multilateral agreements linked to readmission

INSTITUTIONAL INDICATORS

Federal or centralized governing system
Federal system
2015
Custodial authority
Dirección Nacional de Migraciones () Immigration or Citizenship
2015
Policía de Seguridad Aeroportuaria () Internal or Public Security
2014
Detention Facility Management
Servicio Penitenciario Federal (Governmental)
2015
Policía de Seguridad Aeroportuaria (Governmental)
2014
Types of detention facilities used in practice
() Yes Yes
2015
Authorized monitoring institutions
Procuración Penitenciaria de la Nación (Parliamentary (Congressional) Organs)
2014
Centralized or decentralized immigration authority
Apprehending authorities
Formally designated detention estate?
Is the national human rights institution (NHRI) recognized as independent?
Does NHRI carry out visits?
Does NHRI have capacity to receive complaints?
Does NHRI publicly release reports on immigration detention?
Does national preventive mechanism (NPM) carry out visits?
Does NPM have capacity to receive complaints?
Does NPM publicly release reports on immigration detention?
Do NGOs carry out visits?
NGO capacity to receive complaints?
Do NGOs publish reports on immigration detention?
Do parliamentary organs carry out visits?
Do parliamentary organs have capacity to receive complaints?
Do parliamentary organs publicly report on their detention findings?
Do internal inspection agencies (IIAs) carry out visits?
Do IIAs have capacity to receive complaints?
Do IIAs publicly report their findings from detention inspections?
Do international and/or regional bodies (IRBs) visit immigration-related detention facilities?
Do IRBs publicly report their findings from inspections?
Types of privatisation/outsourcing
Detention contractors and other non-state entities
Estimated annual budget for detention operations
Estimated annual budgets for particular detention-related activities
Estimated cost per detainees day (in USD)
Estimated annual budget for non-custodial measures (in USD)
Estimated costs of non-custodial measures (in USD)
Does the country receive external sources of funding?
Description of foreign assistance