07 May 2021
In late April 2021, several civil society organisations denounced the alleged mistreatment of migrants who had been detained 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 country director 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.” Ureta 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 this process.
The Asamblea Abierta de Migrantes y Promigrantes de Tarapacá, another migrant rights advocacy organisation in Chile, stated that certain expulsion orders were given to migrants that were in health centres in preventive quarantine. The organisation’s spokesperson, Lorena Zambrano, said that “the persons who have been notified and detained, are persons that have been in health centres. Most of them are Venezuelan nationals, but there are also persons from other countries.” Zambrano said that the new Migration Law, which allows persons who have entered the country irregularly to voluntarily leave the country within 180 days of the publication of the new law (20 April 2021) without a penalty, was not being respected.
The National Human Rights Institution of Tarapacá (NHRI, Instituto Nacional de Derechos Humanos Tarapacá) said that approximately 50 people had been notified of their expulsion and detained.
In Arica, 32 people, including children, were detained on 23 April 2021. Nonetheless, the appeal filed by the SJM was accepted by the Appeal Court, who ordered the “immediate release” of the detained migrants and also suspended their expulsion orders.
- D. Esquivel, “Agrupaciones Pro Migrantes Denuncian Detenciones Irregulares de Extranjeros en el Norte del País,” Cooperativa, 24 April 2021, https://www.cooperativa.cl/noticias/pais/region-de-tarapaca/agrupaciones-pro-migrantes-denuncian-detenciones-irregulares-de/2021-04-24/153318.html
- Servicio Jesuita a Migrantes Chile, “Declaración Pública: Nueva Expulsión Masiva de Personas Migrantes: Llamamos a Respetar Sus Derechos y a Considerar su Compleja Situación,” Servicio Jesuita a Migrantes, 24 April 2021, https://sjmchile.org/2021/04/24/declaracion-publica-nueva-expulsion-masiva-de-personas-migrantes-llamamos-a-respetar-sus-derechos-y-a-considerar-su-compleja-situacion/
- Cuartel de la Policia de Investigaciones de Iquique, (Google Maps, accessed on 7 May 2021, https://tinyurl.com/xwjs7neb) (Cuartel de la Policía de Investigaciones de Iquique
28 July 2020
Responding to the Global Detention Project’s Covid-19 survey, a government official, verified by the GDP, reported that in Chile, immigration detention is solely used to conduct deportations of administrative or criminal detainees. Faced with border closures due to the Covid-19 crisis, the governmental source said that they were not aware of any deportations taking place and in consequence, no detention orders had been pronounced either. The Ministry of Interior, however, has indicated that administrative deportations would soon restart and in this sense, it is likely that administrative detention would resume.
The source also said that they were unaware of any detainees being released from administrative detention or any measures taken to assist people following release. In addition, no information regarding the testing of detainees was provided by the source. Chile’s borders were closed due to the pandemic, but certain non-citizens were able to leave the country, in coordination with third countries’ consulates.
Agencia Andalou reported that at the start of June, 750 Bolivian, 300 Peruvian, and 200 Colombian nationals had been camping in front of their national consulates for more than a week. These people have been urging their countries to let them return as they have been left stranded and jobless due to border closures and Covid-19. Although Chilean authorities have managed to set-up temporary shelters to protect migrants from the cold, these are now overcrowded and several Covid-19 cases have now been reported amongst migrants. Chile’s Foreign Minister, Teodoro Ribera, stated that he had been in contact with the foreign ministries of other countries urging them to assist their citizens and allow them to return home. The Peruvian government has asked its nationals in Chile to avoid travelling back until a humanitarian flight is organised. Bolivia thanked Chile for its hospitality and said that nearly 700 Bolivian nationals had been repatriated from Santiago in recent weeks. The Colombian government announced that a plane would be sent to Chile to bring back around 200 of its nationals.
On the other hand, the situation for Venezuelan migrants is slightly different. According to the organisation of American States (OAS), Chile is the third country with most Venezuelan migrants and refugees, with 455,494 Venezuelan nationals in the country, representing 30.5 percent of the foreign population. It has been estimated that around 4,000 Venezuelans are seeking to return to their country, but the Chilean government said that for this to be possible, Venezuela had to open its borders. Although most of these Venezuelan nationals have been accommodated in temporary hostels, after weeks of waiting at the door of their embassy, many of them have now been contaminated with Covid-19, and a Venezuelan national died on 2 June, while waiting for his test results.
As regards the country’s prisons, on 17 June, the police (Gendarmeria) reported that 572 detainees and 769 staff tested positive for Covid-19. By the same date, 5 prisoners and 1 staff member had died from the virus. By July, several prisons around the country, including the Tocopilla, La Gonzalina, and Aysén prison have now had many cases of Covid-19.
- Governmental Actor, Global Detention Project’s Covid-19 survey, 18 July 2020.
- Gendarmeria, “Reporte Diario de Contagios (Informacion Confirmada por la Autoridad Sanitaria) y Proceso de Vacunacion,” 17 June 2020, https://html.gendarmeria.gob.cl/doc/reportecovid_17062020.pdf
- Noticias por el Mundo, “Autoridad Sanitaria Confirmó Brote de Covid-19 en Carcel de Tocopilla, ” 4 June 2020, https://noticiasporelmundo.com/autoridad-sanitaria-confirmo-brote-de-covid-19-en-carcel-de-tocopilla-noticias-chile
- Noticias por el Mundo, “Gendarmería Confirma Nuevos Casos de Covid-19 en Cárcel de Rancagua,” 6 June 2020, https://noticiasporelmundo.com/gendarmeria-confirma-nuevos-casos-de-covid-19-en-carcel-de-rancagua-noticias-chile
- L. Veloso, “Diputados Denuncian Brotes Covid-19 en Cárceles de Aysén y Valparaíso: Emplazan a Justicia y Salud,” Biobiochile.cl, 17 July 2020, https://www.biobiochile.cl/noticias/nacional/region-de-valparaiso/2020/07/17/diputados-denuncian-brotes-covid-19-carceles-aysen-valparaiso-emplazan-justicia-salud.shtml
- A. A. Cordoba, “El Drama de los Inmigrantes Sudamericanos Varados en Chile a Causa del Coronavirus,” Agencia Andalou, 8 June 2020, https://www.aa.com.tr/es/mundo/el-drama-de-los-inmigrantes-sudamericanos-varados-en-chile-a-causa-del-coronavirus/1869632
- Peruvian Migrants Camping Outside the Peruvian Embassy in Santiago, (Coordinadora Nacional de Inmigrantes de Chile, "El Drama de los Inmigrantes Sudamericanos Varados en Chile a Causa del Coronavirus," Agencia Andalou, 8 June 2020, https://www.aa.com.tr/es/mundo/el-drama-de-los-inmigrantes-sudamericanos-varados-en-chile-a-causa-del-coronavirus/1869632)
Last updated: March 2021
Submission to the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families
32nd Session, April 2021
Chile: Issues Related to Immigration Detention
The Global Detention Project (GDP) welcomes the opportunity to provide information for consideration in the second periodic report of Chile (CMW/C/CHL/2) to the Committee on Migrant Workers (CMW). The GDP is an independent research centre based in Geneva that investigates immigration-related detention. As per the GDP’s mandate, this submission focuses on the State Party’s laws and practices on issues related to detention for migration-related reasons.
Since its first periodic report to the CMW, Chile has made amendments to its immigration law, including the adoption of a protocol for the expulsion of foreign nationals and a bill on migration and aliens (Bulletin No. 8.970-06), which was recently approved by the Senate.
As indicated by a Chilean government official to the GDP, immigration detention in Chile is solely used to conduct deportations of administrative or criminal detainees. According to the state report to the CMW, in Chile, “detention is not among the control measures established by law for migration offences and may be used only in exceptional circumstances as follows: Once an expulsion order is final and enforceable, the person concerned may be subject to restrictions or deprivation of liberty for a period not exceeding 72 hours. Such measures may be imposed only at the residence of the person concerned or at a police station.” The state report also mentions that under Article 131 of the migration bill, persons subject to an expulsion order may only be deprived of their liberty to enforce the expulsion and for a maximum of 48 hours.
However, according to a protocol concluded between the Ministry of the Interior and Public Security and the Chilean Investigative Police in March 2013, expulsion orders must be executed within 24 hours, and for this reason, the person cannot be detained for longer than this period. In addition, foreign nationals facing expulsion are to be placed in special temporary accommodation units that offer adequate living and sanitary conditions, have separate wings for men and women and these detainees must be separated from persons detained for other legal reasons.
As highlighted in a joint submission by civil society organisations in March 2020, although the bill advances important regulations, and provides for a broader set of rights and duties than current legislation, there are certain points of concern as regards the rights of migrants. For instance, the submission explains that the bill does not contemplate the principle of non-refoulement as the Chilean government indicated that it would not be appropriate to incorporate it into the Migration Act, as it would only apply to refugees. Nonetheless, the joint submission recalls that the principle is contained in several international treaties ratified by Chile and the fact that the principle is provided under Law No. 20,430 on the Protection of Refugees should not be a reason to avoid including it into the bill as the principle applies not only to those who seek asylum or refuge, but also any persons who are at risk and are unaware that they should seek protection, or are unable to do so.
Also, according to the civil society submission, the bill does not provide for regularisation mechanisms, thus its runs counter to Article 69 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families, and could lead to situations of long-term irregularity and thus make people increasingly vulnuerable to detention and deportation.
In addition, in providing information to the GDP in July 2020, a Chilean government official said that, during the pandemic, they were unaware of any detainees being released from administrative detention or any measures taken to assist people following release as a result of measures implemented in response to COVID-19. Faced with border closures due to the pandemic, the governmental source stated that they were not aware of any deportations taking place and in consequence, no detention orders had been pronounced either.
Certain non-citizens were nonetheless able to leave the country, in coordination with third countries’ consulates. Agencia Andalou reported that at the start of June 2020, 750 Bolivian, 300 Peruvian, and 200 Colombian nationals had been camping in front of their national consulates for more than a week, urging their countries to let them return as they had been left stranded and jobless due to the pandemic. Chilean authorities responded by setting up temporary shelters, but these quickly became overcrowded, and several COVID-19 cases were reported amongst migrants. While Bolivia, Peru, and Colombia repatriated their nationals, the situation for Venezuelan migrants was slightly different. The Chilean government said that in order to repatriate Venezuelan nationals, Venezuela had to open its borders. Most Venezuelan nationals were being accommodated in the temporary shelters, and on 2 June 2020, a Venezuelan national died from the virus while waiting for his test results.
2. Previous relevant comments by Human Rights Bodies
In its concluding observations in 2011, the CMW recommended that Chile “(a) provide information on the number of migrants held in custody for violations of migration laws, as well as on the conditions and length of their detention; (and) (b) ensure that the conditions of detention in migrant holding centres are in accordance with international standards.” The Committee also said it remained concerned “about the lack of information received on the length and conditions of [migrant workers in] detention.”
The Committee against Torture (CAT), in its concluding observations in 2018, stated that the period of 24 hours to file an appeal against an expulsion decision to the Supreme Court was too short, while noting that the migration bill would extend the limit to 48 hours. Moreover, the CAT called on the state party “to adopt legislative and other measures necessary to: (a) Review existing legislation on migration and aliens in order to extend the deadline for the filing of appeals against expulsion decisions (b) Ensure that, in practice, no one may be expelled, returned or extradited to another State where there are substantial grounds for believing that he or she would run a personal, foreseeable risk of being subjected to torture; (c) Guarantee that all persons in the territory or under the jurisdiction of the State party have effective access to the procedure for determining refugee status; (d) Ensure that procedural safeguards against refoulement are in place and that effective remedies in respect of refoulement claims in removal proceedings are available, including reviews of rejections by an independent judicial body, in particular on appeal.”
During the 3rd cycle of the Universal Periodic Review of Chile (41st session, June/July 2019), member states issued several recommendations relevant to Chile’s immigration practices. These included:
- Ratify the ILO Domestic Workers Convention, 2011 (No. 189) (Benin) (para. 125.1);
- Ensure that measures under the migration policy in Chile guarantee the protection of the basic rights of migrants, in accordance with its international commitments (Haiti) (para 125.262);
- Strengthen the necessary legislative and policy measures to combat discrimination against migrants, asylum seekers and refugees in all spheres (Honduras) (para. 125.263);
- Develop the legal framework to guarantee the rights of all migrants, regardless of their status, and to promote orderly, safe and regular migration (Mexico) (para. 125.265);
- Scale up its efforts in ensuring the protection and promotion of the rights of migrants (Nigeria) (para. 125.266).
3. Suggested recommendations
- Disclose disaggregated data on the numbers of migrants who are detained and deported for migration-related reasons, including information about the lengths of time each person faced in detention as they awaited deportation or other administrative measure;
- Provide a list of the police stations and other facilities that are used for immigration detention purposes;
- Provide information in terms of the number and location of the special temporary accommodation units, as described by the 2013 protocol;
- Release detainees whose detention is unlawful or unnecessary, including anyone whose deportation is not possible amidst the COVID-19 pandemic;
- Ensure the observance of the principle of non-refoulement in all relevant situations;
- Disclose information clarifying measures being taken to protect immigration detainees during the pandemic;
- Avoid deportation measures during the COVID-19 pandemic;
- Adopt a regularisation mechanism for irregular migrants through legislation, as provided by Article 69 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families.
 Ministerio del Interior y Seguridad Publica, “Congreso Aprueba Ley de Migración y Extranjería,” 3 December 2020, https://www.interior.gob.cl/noticias/2020/12/03/congreso-aprueba-ley-de-migracion-y-extranjeria/
 Governmental Official, “Global Detention Project’s COVID-19 Survey,” 18 July 2020.
 CMW, “Second Periodic Report Submitted by Chile under Article 73 of the Convention Pursuant to the Simplified Reporting Procedure, Due in 2016,” CMW/C/CHL/2, 22 October 2019, para.16, https://undocs.org/en/CMW/C/CHL/2
 CMW, “Second Periodic Report Submitted by Chile under Article 73 of the Convention Pursuant to the Simplified Reporting Procedure, due in 2016,” CMW/C/CHL/2, 22 October 2019, para.18, https://undocs.org/en/CMW/C/CHL/2; República de Chile, “Informe: Boletín N°8970-06. Proyecto de Ley de Migración y Extranjería. Comisión de Gobierno, Descentralización y Regionalización del Senado de la República de Chile,” 18 March 2019, https://bit.ly/2ORRQgq
 Ministerio del Interior y Seguridad Publica, “Protocolo de actuación Para Expulsión de Extranjeros Infractores,” 28 March 2013, http://www.dpp.cl/resources/upload/8d3e68a5b089bdf6801e3dc86c99978c.pdf
 Corporación Humanas, Centro Regional de Derechos Humanos y Justicia de Genero, Centro de Estudios de la Mujer, Colectivo Sin Fronteras, Corporación Opción, Corporación Circulo Emancipador de Mujeres y Niñas con Discapacidad de Chile, Fundación Instituto de la Mujer, Fundación mil trescientos sesenta y siete, Movimiento Acción Migrante, Observatorio Contra el Acoso Chile, “Chile: Alternative Report for the Review of the State of Chile Before the Committee on Migrant Workers at Its 32nd Session (March 2020),” 9 March 2020, https://tbinternet.ohchr.org/Treaties/CMW/Shared%20Documents/CHL/INT_CMW_CSS_CHL_41828_E.pdf
 Corporación Humanas, Centro Regional de Derechos Humanos y Justicia de Genero, Centro de Estudios de la Mujer, Colectivo Sin Fronteras, Corporación Opción, Corporación Circulo Emancipador de Mujeres y Niñas con Discapacidad de Chile, Fundación Instituto de la Mujer, Fundación mil trescientos sesenta y siete, Movimiento Acción Migrante, Observatorio Contra el Acoso Chile, “Chile: Alternative Report for the Review of the State of Chile Before the Committee on Migrant Workers at Its 32nd Session (March 2020),” 9 March 2020, para. 6, https://tbinternet.ohchr.org/Treaties/CMW/Shared%20Documents/CHL/INT_CMW_CSS_CHL_41828_E.pdf
 Corporación Humanas, Centro Regional de Derechos Humanos y Justicia de Genero, Centro de Estudios de la Mujer, Colectivo Sin Fronteras, Corporación Opción, Corporación Circulo Emancipador de Mujeres y Niñas con Discapacidad de Chile, Fundación Instituto de la Mujer, Fundación mil trescientos sesenta y siete, Movimiento Acción Migrante, Observatorio Contra el Acoso Chile, “Chile: Alternative Report for the Review of the State of Chile Before the Committee on Migrant Workers at Its 32nd Session (March 2020),” 9 March 2020, para. 5, https://tbinternet.ohchr.org/Treaties/CMW/Shared%20Documents/CHL/INT_CMW_CSS_CHL_41828_E.pdf
 CMW, “Concluding Observations of the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families,” CMW/C/CHL/CO/1, 19 October 2011, para.27, https://undocs.org/en/CMW/C/CHL/CO/1
 CMW, “Concluding Observations of the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families,” CMW/C/CHL/CO/1, 19 October 2011, para.26, https://undocs.org/en/CMW/C/CHL/CO/1
 UN Human Rights Council, “Report of the Working Group on the Universal Periodic Review,” A/HRC/41/6, 2 April 2019, https://documents-dds-ny.un.org/doc/UNDOC/GEN/G19/088/61/PDF/G1908861.pdf?OpenElement
B. Attitudes and Perceptions
LEGAL & REGULATORY FRAMEWORK
GROUNDS FOR MIGRATION-RELATED DETENTION
LENGTH OF MIGRATION-RELATED DETENTION
MIGRATION-RELATED DETENTION INSTITUTIONS
International Treaties Ratified
Ratio of relevant international treaties ratified
Individual Complaints Procedures
Relevant Recommendations Issued by Treaty Bodies
§27. The Committee recommends that the State party:
(a)Provide detailed information in its next periodic report on the number of migrants held in custody for violations of migration laws, as well as on the conditions and length of their detention;
(b)Ensure that the conditions of detention in migrant holding centres are in accordance with international standards.2011