On 17 December, Chileans will head to the polls to decide if they approve a new draft of the country’s constitution, to replace that which has been in force since Pinochet’s dictatorship. Amongst the proposed new constitution’s articles, written by a right-wing dominated committee, is one requiring the expulsion of irregular migrants from the country. […]
Chile: Human Rights Monitoring Bodies Denounce Proposed Legal Reforms Increasing Detention Measures for Undocumented Migrants and Asylum Seekers
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 […]
Chile: Covid-19 and Detention
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 […]
Chile: Covid-19 and Detention
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 […]
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.
1. Context
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.[1]
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.[2] 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.”[3] 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.[4]
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.[5]
As highlighted in a joint submission by civil society organisations in March 2020,[6] 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.[7]
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.[8]
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.[9] 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.[10]
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.”[11] The Committee also said it remained concerned “about the lack of information received on the length and conditions of [migrant workers in] detention.”[12]
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.[13] 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.”[14]
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.[15] 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.
[1] 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/
[2] Governmental Official, “Global Detention Project’s COVID-19 Survey,” 18 July 2020.
[3] 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
[4] 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
[5] 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
[6] 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
[7] 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
[8] 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
[9] A. A. Cordoba, “El Drama de los Inmigrantes Sudamericanos Varados en Chile a Causa del Coronavirus,” Agencia Andalou, 8 June 2020, https://bit.ly/30HFSbR
[10] A. A. Cordoba, “El Drama de los Inmigrantes Sudamericanos Varados en Chile a Causa del Coronavirus,” Agencia Andalou, 8 June 2020, https://bit.ly/30HFSbR
[11] 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
[12] 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
[13] Committee Against Torture, “Concluding Observations on the Sixth Periodic Report of Chile,” CAT/C/CHL/CO/6, 28 August 2018, para.42, https://undocs.org/en/CAT/C/CHL/CO/6
[14] Committee Against Torture, “Concluding Observations on the Sixth Periodic Report of Chile,” CAT/C/CHL/CO/6, 28 August 2018, para.43, https://undocs.org/en/CAT/C/CHL/CO/6
[15] 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
DETENTION CAPACITY
ALTERNATIVES TO DETENTION
ADDITIONAL ENFORCEMENT DATA
PRISON DATA
POPULATION DATA
LEGAL & REGULATORY FRAMEWORK
Does the Country Have Specific Laws that Provide for Migration-Related Detention?
GROUNDS FOR DETENTION
LENGTH OF DETENTION
DETENTION INSTITUTIONS
PROCEDURAL STANDARDS & SAFEGUARDS
COSTS & OUTSOURCING
COVID-19 DATA
TRANSPARENCY
MONITORING
NATIONAL HUMAN RIGHTS MONITORING BODIES
NATIONAL PREVENTIVE MECHANISMS (OPTIONAL PROTOCOL TO UN CONVENTION AGAINST TORTURE)
NON-GOVERNMENTAL ORGANISATIONS (NGOS)
GOVERNMENTAL MONITORING BODIES
INTERNATIONAL DETENTION MONITORING
INTERNATIONAL TREATIES & TREATY BODIES
International Treaties Ratified
Ratification Year
Observation Date
ICPED, International Convention for the Protection of All Persons from Enforced Disappearance
2009
2009
OPCAT, Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
2008
2008
ICRMW, International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families
2005
2005
CTOCSP, Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime
2004
2004
CTOCTP, Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children
2004
2004
CAT, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
1988
1988
Ratio of relevant international treaties ratified
Ratio: 18/19
Individual Complaints Procedures
Acceptance Year
ICPED, International Convention for the Protection of All Persons from Enforced Disappearance, declaration under article 312009
2009
Relevant Recommendations or Observations Issued by Treaty Bodies
Treaty Body
Human Rights Committee
Recommendation Year
2024
Recommendation Excerpt
38. The State party should:
(a) Ensure that all persons in need of international protection have unfettered access to the national territory and to fair and efficient procedures for the individual determination of refugee status or of international protection needs in order to ensure respect for the principle of non-refoulement and protection against arbitrary detention;
(b) Ensure compliance with due process standards and the principle of non ‑ refoulement in expulsion proceedings;
(c) Design and implement a migration policy based on human rights, including the principle of non-discrimination, and ensure that national legislation is aligned with international human rights standards;
(d) Conduct awareness-raising campaigns to foster a culture of respect for migrants and their rights and to prevent the criminalization of irregular migration.
(a) Ensure that all persons in need of international protection have unfettered access to the national territory and to fair and efficient procedures for the individual determination of refugee status or of international protection needs in order to ensure respect for the principle of non-refoulement and protection against arbitrary detention;
(b) Ensure compliance with due process standards and the principle of non ‑ refoulement in expulsion proceedings;
(c) Design and implement a migration policy based on human rights, including the principle of non-discrimination, and ensure that national legislation is aligned with international human rights standards;
(d) Conduct awareness-raising campaigns to foster a culture of respect for migrants and their rights and to prevent the criminalization of irregular migration.
Sources
Human Rights Committee, "Concluding observations on the seventh periodic report of Chile*", 01 May, 2024, United Nation General Assembly, (paragraph 37 and 38), https://uhri.ohchr.org/en/document/283ff904-bc94-4b82-8f2e-f4c821c05400
Treaty Body
Committee on Migrant Workers
Recommendation Year
2023
Recommendation Excerpt
“The Committee notes with special concern the legislative initiatives aimed at criminalizing irregular migration, causing discrimination against migrants, through the bill that modifies the migration law “to classify the crime of clandestine entry into the national territory” (bulletin 15261 -25). The Committee urges the State party, in accordance with general observations No. 2 (2013), no. 4 (2017) and no. 5 (2021) of the Committee, to refrain from adopting measures that classify immigration irregularity (irregular entry and/or stay) as a crime, as they could only constitute administrative infractions, which do not threaten people, property, or national security. or public order.”
Sources
UN Committee on Migrant Workers, "Follow-Up Letter Sent to the State Party," CMW/followup/37/ik, 11 December 2023, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT%2FCMW%2FFUL%2FCHL%2F56840&Lang=en
Treaty Body
Committee on the Elimination of Racial Discrimination
Recommendation Year
2022
Recommendation Excerpt
33. 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 foreign nationals. In particular, the Committee urges
the State party to:
(a) Design and implement measures to enhance the full participation and
integration of migrants into the society;
(b) Conduct awareness-raising, information and educational campaigns
designed to dispel negative stereotypes against migrants and avoid using negative
representation of migrants in the general migration policy;
(c) Remove barriers that, in practice, impede access to health services,
education and employment by ensuring the timely issuance of identity documents;
(d) Adopt urgent measures to provide a timely response to the residency
applications submitted by migrants who find themselves without any official
identification, and to make sure that migrants have access to the necessary information
with regard to procedures concerning the regularization of their status.
against non-citizens, the Committee recommends that the State party take the necessary
action to ensure the protection of foreign nationals. In particular, the Committee urges
the State party to:
(a) Design and implement measures to enhance the full participation and
integration of migrants into the society;
(b) Conduct awareness-raising, information and educational campaigns
designed to dispel negative stereotypes against migrants and avoid using negative
representation of migrants in the general migration policy;
(c) Remove barriers that, in practice, impede access to health services,
education and employment by ensuring the timely issuance of identity documents;
(d) Adopt urgent measures to provide a timely response to the residency
applications submitted by migrants who find themselves without any official
identification, and to make sure that migrants have access to the necessary information
with regard to procedures concerning the regularization of their status.
Sources
Committee on the Elimination of Racial Discrimination, "Concluding observations on the combined twenty-third to
twenty-sixth reports of Germany*", 21 December 2023, United Nation General Assembly, https://uhri.ohchr.org/en/document/0c0be6a2-6924-4475-86ea-fdff640dbfbc
Treaty Body
Committee on the Rights of the Child
Recommendation Year
2022
Recommendation Excerpt
35. the Committee urges the State party to:
(a) Amend the law on migration to include safeguards related to entry
requirements, procedures which take into account the special needs of children, and full
respect for the principle of non-refoulement;
(b) Improve reception conditions for asylum-seeking, refugee and migrant
children, including undocumented and separated children; uphold the best interests of
the child as a primary consideration in the status determination procedures; and
provide free legal aid, interpretation services and other appropriate forms of assistance;
...
(h) End the practices of forced returns (“pushbacks”) of families and children
in situations of migration and ensure they are individually identified, registered and
protected against refoulement, including through effective access to asylum procedures;
(a) Amend the law on migration to include safeguards related to entry
requirements, procedures which take into account the special needs of children, and full
respect for the principle of non-refoulement;
(b) Improve reception conditions for asylum-seeking, refugee and migrant
children, including undocumented and separated children; uphold the best interests of
the child as a primary consideration in the status determination procedures; and
provide free legal aid, interpretation services and other appropriate forms of assistance;
...
(h) End the practices of forced returns (“pushbacks”) of families and children
in situations of migration and ensure they are individually identified, registered and
protected against refoulement, including through effective access to asylum procedures;
Sources
Committee on the Rights of the Child," Concluding observations on the combined sixth and seventh periodic reports of Chile*", 22 June 2022, United Nation, (paragraph 35), file:///Users/Intern2/Downloads/CRCCCHLCO6-7.pdf
Treaty Body
Committee on Migrant Workers
Recommendation Year
2021
Recommendation Excerpt
§11. The Committee urges the State party to publish the Migration and Aliens Act and its implementing regulations promptly, so that they may enter into force and, where necessary, be amended so as to be brought into full conformity with the Convention, in particular with regard to:
(a) The establishment of ordinary regularization mechanisms that are regulated by law within the State party, in accordance with article 69 of the Convention, and that apply to all migrants, irrespective of whether their migration status is regular or irregular;
(b) The rights of migrant workers in an irregular situation, in accordance with the Committee’s general comment No. 2 (2013);
(c) The use of alternative measures to detention, either as a priority response to irregular migration, in accordance with the principle of detention as an exceptional measure, or as an alternative to deportation in cases of irregular migration;
(d) The use of administrative detention for migration-related matters as a measure of last resort and for the shortest possible period of time;
(e) The total prohibition of the detention of migrant children and adolescents, whether accompanied or unaccompanied, in accordance with joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child;
(f) The guarantee of the right to due process in deportation procedures and the prohibition of collective deportation, as well as guarantees of due process, including the right to free legal assistance, translation services, and access to mechanisms by which to challenge decisions in migration procedures;
(g) Protection of the right to nationality for all children born in Chile, including those whose fathers and/or mothers have an irregular migration status;
(h) The protection of refugees, persons in need of additional protection and other persons in need of international protection;
(i) Access to social security benefits and allowances on an equal basis with nationals, in accordance with article 27 of the Convention.
...
§44. In light of the Committee ’ s general comment No. 2 (2013), the Committee recommends that the State party:
(a) Ensure that the detention of migrants is an exceptional measure of last resort, that the grounds are specified in each case, with specific reasons why alternative measures cannot be implemented, and that the measure is reviewed within 24 hours by an independent and impartial judicial authority;
(b) Adopt alternatives to administrative detention for migrant workers and members of their families who are facing expulsion from the national territory;
(c) Ensure adequate and decent conditions in migrant detention centres, which should not resemble a prison in appearance or purpose;
(d) Ensure that the regulations implementing the new Act provide that migrants and members of their families subject to a detention order may retain their identification documents, even if they have expired;
(e) Collect and provide up-to-date data, disaggregated by age, sex, nationality, place of detention and reason for detention, on migrants and members of their families in detention.
...
48. The Committee urges the State party to: (c) Guarantee, in law and in practice, the principle of non-refoulement, which prohibits the forced removal of any person, in any manner whatsoever, to a country or territory where he or she would be at real risk of persecution or serious human rights violations or abuses. In the view of the Committee, this principle covers the risk of torture and cruel, inhuman or degrading treatment or punishment, including inhumane and degrading conditions of detention for migrants or lack of necessary medical treatment in the country of return, as well as the risk to the right to life (arts. 9 and 10 of the Convention). It also applies to situations where individuals would not be protected from onward refoulement. The Committee is of the view that migrants and members of their families should be protected in cases where expulsions would constitute arbitrary interference with the right to family and private life. Migrants and members of their families in an irregular situation with international protection needs should also be protected against expulsion.
(a) The establishment of ordinary regularization mechanisms that are regulated by law within the State party, in accordance with article 69 of the Convention, and that apply to all migrants, irrespective of whether their migration status is regular or irregular;
(b) The rights of migrant workers in an irregular situation, in accordance with the Committee’s general comment No. 2 (2013);
(c) The use of alternative measures to detention, either as a priority response to irregular migration, in accordance with the principle of detention as an exceptional measure, or as an alternative to deportation in cases of irregular migration;
(d) The use of administrative detention for migration-related matters as a measure of last resort and for the shortest possible period of time;
(e) The total prohibition of the detention of migrant children and adolescents, whether accompanied or unaccompanied, in accordance with joint general comment No. 4 (2017) of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families and No. 23 (2017) of the Committee on the Rights of the Child;
(f) The guarantee of the right to due process in deportation procedures and the prohibition of collective deportation, as well as guarantees of due process, including the right to free legal assistance, translation services, and access to mechanisms by which to challenge decisions in migration procedures;
(g) Protection of the right to nationality for all children born in Chile, including those whose fathers and/or mothers have an irregular migration status;
(h) The protection of refugees, persons in need of additional protection and other persons in need of international protection;
(i) Access to social security benefits and allowances on an equal basis with nationals, in accordance with article 27 of the Convention.
...
§44. In light of the Committee ’ s general comment No. 2 (2013), the Committee recommends that the State party:
(a) Ensure that the detention of migrants is an exceptional measure of last resort, that the grounds are specified in each case, with specific reasons why alternative measures cannot be implemented, and that the measure is reviewed within 24 hours by an independent and impartial judicial authority;
(b) Adopt alternatives to administrative detention for migrant workers and members of their families who are facing expulsion from the national territory;
(c) Ensure adequate and decent conditions in migrant detention centres, which should not resemble a prison in appearance or purpose;
(d) Ensure that the regulations implementing the new Act provide that migrants and members of their families subject to a detention order may retain their identification documents, even if they have expired;
(e) Collect and provide up-to-date data, disaggregated by age, sex, nationality, place of detention and reason for detention, on migrants and members of their families in detention.
...
48. The Committee urges the State party to: (c) Guarantee, in law and in practice, the principle of non-refoulement, which prohibits the forced removal of any person, in any manner whatsoever, to a country or territory where he or she would be at real risk of persecution or serious human rights violations or abuses. In the view of the Committee, this principle covers the risk of torture and cruel, inhuman or degrading treatment or punishment, including inhumane and degrading conditions of detention for migrants or lack of necessary medical treatment in the country of return, as well as the risk to the right to life (arts. 9 and 10 of the Convention). It also applies to situations where individuals would not be protected from onward refoulement. The Committee is of the view that migrants and members of their families should be protected in cases where expulsions would constitute arbitrary interference with the right to family and private life. Migrants and members of their families in an irregular situation with international protection needs should also be protected against expulsion.
Sources
Committee on Migrant Workers, "Concluding observations on the second periodic report of Chile," CMW/C/CHL/CO/2, 9 April 2021, https://uhri.ohchr.org/en/document/752db5b4-90d4-4c53-aaea-9709abaa3ee7
Treaty Body
Committee against Torture
Recommendation Year
2018
Recommendation Excerpt
§43. "The Committee calls 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."
Sources
Committee Against Torture, “Concluding Observations on the Sixth Periodic Report of Chile,” CAT/C/CHL/CO/6, 28 August 2018, https://undocs.org/en/CAT/C/CHL/CO/6
Treaty Body
Committee on the Rights of the Child
Recommendation Year
2015
Recommendation Excerpt
§ 76. "The Committee recommends that the State party:
(a) Ensure that procedures for determining refugee status take into account the specific needs and rights of asylum-seeking children;
(b) Ensure that refugee and asylum-seeking children enjoy an adequate standard of living and effective access to health, social services and education without discrimination;
(c) Provide disaggregated statistics on the current number of asylum-seeking and refugee children in the State party and expressly include those groups in planning activities, economic and social indicators and statistical data;
(d) Seek the technical support of the United Nations Office of the High Commissioner for Refugees in this regard."
(a) Ensure that procedures for determining refugee status take into account the specific needs and rights of asylum-seeking children;
(b) Ensure that refugee and asylum-seeking children enjoy an adequate standard of living and effective access to health, social services and education without discrimination;
(c) Provide disaggregated statistics on the current number of asylum-seeking and refugee children in the State party and expressly include those groups in planning activities, economic and social indicators and statistical data;
(d) Seek the technical support of the United Nations Office of the High Commissioner for Refugees in this regard."
Sources
Committee on the Rights of the Child, "Concluding Observations on the Combined Fourth and Fifth Periodic Reports of Chile," CRC/C/CHL/CO/4-5, 30 October 2015, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CRC%2fC%2fCHL%2fCO%2f4-5&Lang=en
Treaty Body
Committee on Migrant Workers
Recommendation Year
2011
Recommendation Excerpt
<p>§27. The Committee recommends that the State party:</p>
<p>(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;</p>
<p>(b)Ensure that the conditions of detention in migrant holding centres are in accordance with international standards.</p>
<p>(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;</p>
<p>(b)Ensure that the conditions of detention in migrant holding centres are in accordance with international standards.</p>
Sources
Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families. 'Consideration of reports submitted by States parties under article 74 of the Convention: Concluding observations of the Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families: Chile'. CMW/C/CHL/CO/1. 19 October 2011.
Global Detention Project and Partner Submissions to Treaty Bodies
Treaty Body
Committee on Migrant Workers (CMW)
Session Date
9 April 2021
Session Information
32nd Session
Submission Type
State Report
Recommendation Impact
Partially
Discussion of Impact
While the Committee’s Concluding Observations only partially reflected our submission’s recommendations. The Committee recommended the total prohibition of the detention of migrant children and adolescents, whether accompanied or unaccompanied. However, the committee failed to urge Chile to 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 measures. The Committee also did not take up recommendation to provide a list of the police stations and other facilities that are used for immigration detention purposes, nor disclose information clarifying measures being taken to protect immigration detainees during the pandemic.
Sources
Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families, "Concluding observations on the second periodic report of Chile," 11 May 2021, https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CMW%2FC%2FCHL%2FCO%2F2&Lang=en
Global Detention Project, "Submission to the Committee on Migrant Workers: Chile," 18 March 2021, https://www.globaldetentionproject.org/submission-to-the-committee-on-migrant-workers-chile
> UN Special Procedures
> UN Universal Periodic Review
Relevant Recommendations or Observations from the UN Universal Periodic Review
Recommendation Issued
Yes
Year Issued
2024
UPR Cycle
4th
Recommendation Excerpt
Conclusions and/or recommendations:
24.313 Scale up its efforts to ensure the promotion and protection of the rights of migrants, including by committing to the principle of non-refoulment (Nigeria);
24.317 Stop collective expulsions and the refoulment of migrants (Iraq);
24.319 Strengthen mechanisms for the protection of migrants and refugees, including by upholding the principle of non-refoulement and effectively implementing the 2021 migration law and 2023 National Migration Policy (Philippines);
24.326 Ensure that border governance measures protect the rights of migrants, asylum-seekers and refugees by due process and the principle of non-refoulement, and prevent the collective expulsion of migrants (Gambia);
24.327 Advance the implementation of its National Policy on Migration and Foreign Nationals, establish regularization mechanisms for irregular migrants, and guarantee access to fair and effective asylum procedures (Canada);
24.328 Redouble actions to protect the rights of migrants and refugees in accordance with the principle of non-refoulement and the prohibition of arbitrary and collective expulsion (Costa Rica);
24.313 Scale up its efforts to ensure the promotion and protection of the rights of migrants, including by committing to the principle of non-refoulment (Nigeria);
24.317 Stop collective expulsions and the refoulment of migrants (Iraq);
24.319 Strengthen mechanisms for the protection of migrants and refugees, including by upholding the principle of non-refoulement and effectively implementing the 2021 migration law and 2023 National Migration Policy (Philippines);
24.326 Ensure that border governance measures protect the rights of migrants, asylum-seekers and refugees by due process and the principle of non-refoulement, and prevent the collective expulsion of migrants (Gambia);
24.327 Advance the implementation of its National Policy on Migration and Foreign Nationals, establish regularization mechanisms for irregular migrants, and guarantee access to fair and effective asylum procedures (Canada);
24.328 Redouble actions to protect the rights of migrants and refugees in accordance with the principle of non-refoulement and the prohibition of arbitrary and collective expulsion (Costa Rica);
Sources
Human Rights Council, "Report of the Working Group on the Universal Periodic Review Chile", 03 May 2024, United Nations General, https://documents.un.org/doc/undoc/gen/g24/089/70/pdf/g2408970.pdf
Recommendation Issued
No
Year Issued
2009
Sources
Report of the Working Group on the Universal Periodic Review * Chile, A/HRC/12/10, 4 June 2009, https://www.upr-info.org/sites/default/files/document/chile/session_5_-_may_2009/ahrc1210chilee.pdf
Recommendation Issued
Yes
Year Issued
2014
Sources
Report of the Working Group on the Universal Periodic Review: Chile. 2 April 2014. A/HRC/26/5.
REGIONAL HUMAN RIGHTS MECHANISMS
Regional Legal Instruments
Year of Ratification (Treaty) / Transposed (Directive) / Adoption (Regulation)
Observation Date
CBDP, Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention of Belem do Para)1996
1996
HEALTH IMPACTS
COVID-19
Country Updates
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.
Importantly, although Chile's law provide for forms of administrative costly for migrants awaiting expulsion, regulations for these detention operations does not explicitly provide for health care screening or other forms of care.
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.
Government Agencies
Departamento de Extranjería y Migración - https://serviciomigraciones.cl/
- extranjeriavalpo@interior.gov.cl
- +56 6004863000
Gendarmerie - http://www.gendarmeria.gob.cl
International Organisations
IOM Chile - https://chile.iom.int/
UNHCR Chile - https://www.unhcr.org/chile.html
NGO & Research Institutions
Human Rights Watch Chile - https://www.hrw.org/americas/chile
Instituto Nacional de Derechos Humanos - https://www.indh.cl/
Ombudsman - https://ombudsman-assurance.ch/
