Continuity Or Change? Immigration Policy in Chile

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2020-01-10 Continuity or change? Immigration policy in Chile

Pando Burciaga, Elizabeth

Pando Burciaga, E. (2020). Continuity or change? Immigration policy in Chile (Unpublished doctoral thesis). University of Calgary, Calgary, AB. http://hdl.handle.net/1880/111531 doctoral thesis

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Continuity or change? Immigration policy in Chile

Elizabeth Pando Burciaga

A THESIS

SUBMITTED TO THE FACULTY OF GRADUATE STUDIES

IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE

DEGREE OF DOCTOR OF PHILOSOPHY

GRADUATE PROGRAM IN POLITICAL SCIENCE

CALGARY, ALBERTA

JANUARY, 2020

Ó Elizabeth Pando Burciaga 2020

Abstract

Since the return to democracy in the 1990s, Chile has become a destination for immigrants from South American countries. Responding to increases in immigration, governments have enacted a series of policies aimed mainly at social assistance and regularization for immigrants.

These policies, however, have been adopted without repealing Decree-Law 1094 of 1975 (DL

1094), Chile’s law on immigration, created by presidential decree during the military government of Augusto Pinochet. Far from managing immigration and the integration of immigrants into Chilean society, DL 1094 was conceived as an instrument to securitize immigration policy and keep foreigners out.

This dissertation addresses the question of how Chilean governments after the return to democracy have expanded the rights of immigrants when they should have been constrained by DL 1094. The study reveals that such advances have been made possible thanks to a gradual process resulting from the accumulation of small changes as policy actors find gaps and ambiguities and “build around” formal immigration institutions. The policy-making process is analyzed in three distinct venues: central government, municipal governments, and the judicial branch. The study reveals first, that while actors in these three venues have no formal authority over immigration policy, they have acquired new responsibilities and created policies that effectively put boundaries around DL 1094; second, actors recruited into this policy area employ frames that discuss immigration policy in depoliticized ways, arising from each group of actors’ particular venue; and third, this study finds that actors advance policies without dismantling the existing rules, but instead bypass, reinterpret, and build around them.

Preface

I first learned about immigration in Chile thanks to an article on the topic of immigration and carework, which discussed the market-place for Peruvian careworkers in

Santiago and how the institution of carework was being transformed thanks to new immigration patterns into the country. The traditional Chilean nanas (nannies) were being replaced by women from Peru and other neighboring countries who performed the same services for Santiago’s middle and upper classes, albeit under more difficult conditions as a result of their immigration status.

This led me to question how the Chilean state was managing (or failing to manage) this

“new migration.” On the one hand, it appeared as if the state had completely abandoned its role in setting policy in this area, primarily because Decree-Law 1094 (DL 1904), Chile’s immigration decree adopted by Augusto Pinochet just two years after arriving to power in a military coup in

1973, is still the country’s highest immigration legislation. On the other hand, I quickly learned about a number of policies that were beneficial to immigrants, especially to those who tended to have more precarious status, such as “undocumented,” or as Chileans will say, irregular immigrants. For example, one of such policies is the visa for pregnant women, which seemed to me to be an extremely progressive program. The program allows pregnant women who are in the country without a proper visa to obtain one, and to access medical care during their pregnancy at no cost. Furthermore, their children born in Chile automatically obtain Chilean citizenship under the ius solis regime. As anyone who is familiar with debates in Canada and the United States concerning the so-called “anchor babies” or “birth tourism” knows, healthcare

iii access for immigrants, especially pregnant immigrants, is neither a given nor a popular policy.

How could this be possible? How could the Chilean state abdicate its role in creating immigration policy yet produce some very progressive immigration policies at the same time?

This dissertation is my attempt to provide an answer to this initial puzzle.

Through my research, I have come to conclude that advances in immigration policy have been possible in spite of restrictive immigration legislation, DL 1094, thanks to the work of policy actors who have found ways to “build around” formal institutions in charge of immigration and gradually replace them. This is why to an observer it could appear as if there is policy change and at the same time there is continuity with past legacies. Even though this approach has allowed actors to advance policy in the absence of immigration reform, the strategy of “building around” formal institutions is not without tensions. Without immigration reform, the Chilean state continues the legacy of an authoritarian regime and threatens to revert advances in policy thus far.

Acknowledgements

Completing this dissertation has been possible thanks to the support and encouragement of numerous individuals. These words of acknowledgement are not enough to express my gratitude to all of them.

I wish to thank first Dr. Susan Franceschet, my dissertation supervisor, for sharing her expertise and advice throughout the different stages of this work, as well as for her unending patience and support, but more than anything, for giving me the confidence to complete this project. My gratitude as well to the members of my supervisory committee, Dr. Pablo Policzer and Dr. Melanee Thomas, for their detailed review of my work, for raising important questions, and for their constructive feedback. I also wish to thank the Social Sciences and Humanities

Research Council of Canada for providing me with funding to complete this work. This dissertation could not have been possible without those who kindly accepted to be interview participants; thank you for your interest in my work, for generously opening your doors to me, and for the work you do every day.

I also wish to thank the following faculty and staff members in the Department of

Political Science at the University of Calgary for their kind support during my studies: Dr.

Brenda O’Neill, Dr. Jack Lucas, Dr. Antonio Franceschet, Dr. Joshua Goldstein, and Dr. Mark

Baron, as well as Ella Wensel, Judi Powell, Denise Retzlaff, Bonnie Walter, and Jessica Daigle.

I am especially grateful to Mariana Mota and Jeanne Liendo, as their friendship has meant so much to me throughout this project and beyond. I also wish to thank David Torre,

Janine Giles, Jen Sidorova, Ricardo Vernet, and Comfort Kwarteng, for their kind support and interest in my work.

The Latin American Research Centre at the University of Calgary was also my intellectual home throughout this endeavour; thus, my thanks to Monique Greenwood,

Carolina Camelo, Rogelio Velez, Dr. Pablo Policzer (as LARC Director), Dr. Hendrik Kraay, and

Dr. Stephen Randall, for your dedication in fostering a community of Latin Americanists.

I would also like to thank Joanna Buhr and Rosario Acosta for their continued support and friendship over the years. This work would not have been possible without the support of the Terrazas family, especially Leticia, Sergio, Estefania, and Richard. Tambien quiero agradecer a mi madre, Elizabeth Burciaga, a mi padre, Alfredo Pando, y mi hermana, Abril Velasco; gracias por estar conmigo siempre y apoyarme en este proyecto, incluso mucho antes de yo saberlo. Lastly, I wish to thank Carlos Rodriguez, Rogelio Rodriguez, Rebeca Rodriguez, and Octavia Rodriguez Pando, for their love and encouragement; as this project comes to an end, I cannot help but think of all the things we will now learn together.

Contents

Abstract ...... ii

Preface ...... iii

Acknowledgements ...... v

Tables and Figures ...... x

Acronyms ...... xi

1. Immigration policy in Chile: explaining the pro-immigrant turn ...... 1 1.1 Chile’s new immigration meets the “the same old institutions” ...... 1 1.2 Immigration policy in settler societies: Chile in comparison ...... 7 1.2.1 Immigration policy in settler societies ...... 7 1.2.2 Public opinion on immigration in settler societies ...... 11 1.3 Politics in the post-authoritarian era ...... 15 1.3.1 Regime change in the 20th Century: the long road back to democracy ...... 15 1.3.2 Dismantling authoritarian legacies? ...... 19 1.4 Explaining immigration policy ...... 23 1.4.1 Bringing the state back into immigration ...... 24 1.4.2 Interest-based explanations: immigration’s winners and losers ...... 25 1.4.3 Liberal states meet immigration ...... 27 1.4.4 What is missing? ...... 31 1.5 Explaining change: moving past “the same old institutions” ...... 33 1.5.1 The “building around institutions” model of change ...... 33 1.5.2 Depoliticization of immigration policy ...... 37 1.6 Contributions ...... 42 1.7 Methods and outline of chapters ...... 46

2. Patterns of immigration and institutional change ...... 52 2.1 Chilean immigration policy: historical overview ...... 53 2.2 Immigration policy: legal and institutional organization ...... 70

vii

2.2.1 Legal and institutional framework ...... 71 2.2.2 The policies ...... 78 2.3 Conclusion ...... 86

3. Depoliticizing immigration policy in central government ...... 89

3.1 Old and new actors in central government change the landscape ...... 89 3.1.1 DEM acquires renewed authority ...... 92 3.1.2 Social ministries acquire new powers ...... 99 3.2 Working around formal immigration rules and institutions ...... 105

3.2.1 Presidential directives as policy foundations ...... 106 3.3 Depoliticizing immigration policy ...... 111 3.3.1 First frame: modernizing the state ...... 111 3.3.2 Second frame: leveling the field for everyone ...... 115 3.4 Conclusion ...... 120

4. Municipal governments and immigration: a bottom-up approach to policy ...... 122 4.1 Populating the municipal Immigrant Policy Units: venue and actors ...... 123 4.1.1 Municipalities and immigrants: first contact with the state ...... 123 4.1.2 Municipal politics and voting rights of immigrants: ...... 127 4.2 Policy origins and development: immigration policy as community development ... 133 4.2.1 First response: dealing with crises and externalities ...... 134 4.2.2 Community development policies and immigrants ...... 139 4.2.3 What does immigration policy look like under the Community Development mandate? ...... 145 4.3 Depoliticizing immigration policy in municipal government ...... 155 4.3.1 Avoiding the “window for immigrants” policy model: mainstreaming immigration policy… ...... 157 4.4 Conclusion ...... 164

5. The judicial branch: reinterpreting immigration legislation ...... 166 5.1 Chilean nationality regime: the road to exclusion ...... 167 5.2 The emergence of civil society organizations ...... 172

5.3 Framing immigrants’ rights as human rights ...... 177

viii

5.4 Strategic litigation: reinterpreting the rules ...... 183

5.4.1 Contesting the meaning of “transient” ...... 190 5.4.2 Who is right? ...... 196 5.5 Policy change and the end of the “transient” immigrant ...... 201

5.6 Conclusion ...... 207

6. Conclusion: tensions and limits of “building around” institutions ...... 210 6.1 Continuing tensions in the advancement of Chilean immigration policy ...... 219

6.2 Avenues for future research ...... 222

References ...... 225

Appendices ...... 244 5.7 Appendix A: Interview Participants ...... 244 5.8 Appendix B: Ministry of Interior: Subministry of Interior Organizational Chart ...... 246

Tables and Figures

Tables

Table 2.1 Migration to Chile 1854-1940 Table 2.2 Emigration of Chileans 1970 and 1980 Table 2.3 Migration Growth in South American Countries 2000-2017 Table 4.1 Percentage of participating voters in relation to the voting age population Table 4.2 Electoral participation of Chilean vs non-Chilean voters 2013-2017 Table 4.3 Top 10 municipalities with non-citizen voters in 2016 Table 4.4 Immigrant families in Metropolitan Region affected by earthquake Table 4.5 Municipalities with Immigration Policy Units Table 4.6 Immigration Policy Units Policy Areas Table 5.1 International instruments relating to the rights of immigrants ratified by Chile Table 5.2 International instruments on human rights ratified by Chile. Table 5.3 Nationality claims presented before the Supreme Court between 1992 and 2014 Table 5.4 International instruments employed by the Supreme Court in Nationality Claims Table A.1 Interview participants

Figures

Figure 1.1 Percentage of respondents who would not like to have an immigrant/foreign worker as neighbor Figure 1.2 Percentage of respondents who agree nationals should have priority over immigrants when jobs are scarce Figure 1.3 Percentage of respondents who do not trust people of other nationalities Figure 1.4 Percentage of respondents who strongly agree or agree immigrants take jobs away from nationals Figure 2.1 Percentage of Foreign-born population in Chile 1982-2017 Figure 2.2 Largest Foreign-born Groups in Chile 1992-2014 Figure 2.3 Top Five Countries with Visas Issued 2013 and 2017 Figure 2.4 Percentage of immigrants by gender 2005-2017 Figure A.2 Ministry of Interior: Subministry of Interior Organizational Chart

Acronyms

AMUCH Asociación de Municipalidades de Chile Association of Chilean Municipalities CAJ Corporación de Asistencia Judial Corporation for Legal Assistance CRPC Comité de Refugiados Peruanos en Chile Peruvian Refugees in Chile Committee DEM Departamento de Extranjería y Migración Department of Foreigners and Immigration DIDECO Dirección de Desarrollo Comunitario Directorate of Community Development DGI Dirección General de Investigaciones General Office of Investigations DL 1094 Decree-Law 1094 of 1975 IPU Immigration Policy Unit FONASA Fondo Nacional de Salud National Health Insurance Program HET Hijo de Extranjero Transeúnte Child of a Foreigner in Transit INCAMI Instituto Católico Chileno de Migración Catholic Chilean Migration Institute JUNJI Junta Nacional de Jardines de la Infancia National Board of Kindergartens PRC Plan Regulador Comunal Regulatory Community Plan PLADECO Plan de Desarrollo Comunitario Community Development Plan SERVEL Servicio Electoral de Chile Chilean Electoral Service SJM Servicio Jesuita Migrante Jesuit Immigrant Service

1. Immigration policy in Chile: explaining the pro-immigrant turn

1.1 Chile’s new immigration meets the “the same old institutions”

Chile’s demographic scenario has changed after the country’s return to democratic rule with the arrival of “the new migration” (Pedemonte and Silva 2016; Stefoni 2002a). Chilean society is trying to cope and adapt to a sudden increase in the number of immigrants arriving to the country mainly in search of work1 (Ministry of Social Development 2013, 2015). The new migration is characterized by a rapid increase, compared to the much lower numbers of immigrants that chose Chile as a destination for much of the 20th century, when the census at the start of the century revealed that 4.1 percent of the population was foreign born. From that point forward, the percentage of the foreign-born population declined until reaching its lowest point, a mere 1 percent in 1970. Chile became once again an attractive destination for immigrants after the return to democracy in the 1990s, and by 2013, the foreign-born population had reached 354, 581, or 2.1 percent of the total population (Ministry of Social Development

2015). The new migration is also characterized by the new national and ethnic groups that comprise it. Traditionally, Argentineans had comprised the largest foreign-born group. By 2013, immigrants from the Andean region (Peruvians, Colombians, Bolivians and Ecuadoreans) comprised almost 60 percent of the total immigrant population, and Peruvians alone comprised

1 According to government data, in 2013, the employment rate for immigrants was 71.9 percent, compared to 52.8 for the domestic born population. By 2015, the rate for immigrants continued to be higher, 76.7 percent, compared to 57.7 percent for those born in the country.

a third of all immigrants. Although the percentage of Chile’s immigrant population is still low when compared to traditional immigration countries,2 according to some organizations, by 2023 there could be one million immigrants in the country, or a 182 percent increase in only ten years

(González Isla 2016).

In light of these changes, the various groups that comprise Chilean society voice their concerns with regards to immigration. The Chilean media regularly reports on immigration, such as how many immigrants there are in the country and where they come from,3 what kinds of criminal activities they are involved in,4 how they live in the new country and how their arrival changes the Chilean landscape,5 among other topics which reflect public interest on the issue. In June of 2015, a late-night TV show presented what was intended to be a parodic sketch where an actress impersonated the supposed prototype of a Colombian immigrant woman in

Chile, a voluptuous female in a short-tight dress, who made a living through drug trafficking and prostitution. The sketch outraged Colombians and the immigrant community in general, and it forced the network and actress to issue a public apology (Charpentier 2015). Immigration

2 For example, the estimated percentage of foreign-born population in Australia is 29 percent, 21 percent in Canada, 15 percent in Germany, 14 percent in the United States, and 13 percent in Spain and the United Kingdom (Pew Research Center 2019, http://www.pewglobal.org/interactives/international- migrants-by-country/). 3 For example, “Los Inmigrantes llegan a 440mil” (2014), “Asentamiento de extranjeros en Chile crece 123% en 13 años” (2016), “Permanencias definitivas de las seis colonias más numerosas” (2016), and “Cambios en la migración clásica?” (2017). 4 For example, “Policía registró aumento de extranjeros expulsados en 2014” (2014), “Mafias cobran al menos $340 mil por ingresar a Chile” (2015), “Plantean que migrantes ilegales puedan ser expulsados tras condenas por crimen” (2015), “Bolivianos, colombianos y dominicanos lideraron expulsión por ilícitos” (2016). 5 For example, “Inmigrantes: la Navidad lejos de casa” (2014), “Vivir en el hacinamiento” (2015), “Familias migrantes sienten que los colegios no tienen autoridad” (2016), El "Puerto Príncipe" de Quilicura que tiene iglesia, peluquerías y comida rápida” (2016), “Neotugurización: Los migrantes hacinados del siglo 21 en Santiago” (2017), “Ferias, supermercados y minimarkets suman a su oferta alimentos tradicionales” (2017).

has become so ubiquitous that in 2017, the Chilean network TVN released a 143-episode series called “The Colombian,” about an immigrant woman from Colombia and her young son who arrive in Chile in search of opportunities and hoping to make a new life. The series, filmed in

Yungay, a neighborhood in Santiago where many immigrants live, is credited with having made immigrants visible to wider audiences. Its finale aired on Sept 28, 2017 and was the most watched showed during its primetime slot (Todotvnews 2017). In 2018, once again issues around immigration received national attention after Pope Francis II visited the country and made a special trip to the northern city of Iquique in the Tarapacá Region, where 14 percent of the population is foreign-born (Tarapacá Regional Government 2018). While there, he addressed the immigrant community and asked for greater acceptance by Chilean society and an end to the exploitation and discrimination of immigrants (La Tercera 2018). All the while, the streets of Chile’s capital, Santiago, show this new reality: immigrants change the city and make it their own with their restaurants and businesses, festivals, and accents.

The government for its part has had to quickly adapt to the challenges brought on by the recent increases in the foreign-born population. It has done so by enacting a series of policies aimed mainly at social assistance and regularization. These policies will be further discussed in detail in Chapter 2. At this point however, it is important to mention that these policies have been piecemeal and somewhat fragmented. What is more puzzling, and central to the argument advanced by this study, is that the recent pro-immigrant policies have been adopted without altering the main pillar of Chile’s immigration policy, Decree-Law 1094 of 1975 (DL 1094), the act governing all aspects of immigration into the country, which created the Department of

Foreigners and Immigration (Departamento de Extranjería y Migración, or DEM) as the institution

responsible for the administration of immigration. The decree, passed by the Pinochet government in 1975, had as its goal to restrict immigration into the country, at a time when the government attempted to maintain authoritative control over society and used immigration policy towards that end. Furthermore, the decree ordered the creation of DEM, which was tasked with the administration of immigration policy ever since. While there have been attempts at immigration reform, one during the first government of Michelle Bachelet (2006-

2010), sponsored by the Concertación coalition, and one during the government of Sebastian

Piñera (2010-2014), sponsored by the Renovación Nacional coalition, these legislative efforts were ultimately unsuccessful. Chile’s current law on immigration is outdated, no longer reflecting the needs of the country in terms of its outlook on immigration. Furthermore, the main institutional authority on immigration policy is still DEM, which up until very recently had a more procedural role managing immigration (issuing visas and record maintenance, as opposed to creating and updating policy on the matter. The way it was conceived by DL 1094, DEM is far from being an institutional venue responsible for engaging input from societal actors and creating immigration policy.

The path taken by Chile with regard to the institutions and rules which manage immigration to the country stands in contrast to other countries in the region with similar histories. For example, in 1981 the military government of Jorge Videla in Argentina passed Act

22 439 (known as Videla Act). Similar to DL 1094, the Videla Act restricted the conditions for immigration to Argentina, based on the notion that foreigners were a potential hazard to the country’s national security (Brumat and Torres 2015), as well as the idea that ethnically or culturally distant immigrants could pose a threat to the Argentinean nation (Nejamkis 2016).

However, in the years that followed, and with the return to democratic government, various sectors of Argentinean society sought to either reform or abolish the Videla Act. This finally took place in 2004, after many years of discussions between civil society and government actors.

As explained by Brumat and Torres (2015, 69), “The [Videla Act] and the Broadcasting Act symbolized the legacy of the military dictatorship in democratic government, and therefore the national government’s interest in reforming them.” Oddly, Chilean governments after the return to democracy have not acted with the same urgency in repealing legislation so indicative of military repression. Other scholars have looked at South American countries formerly under military dictatorships and have categorized them according to how deep reforms to immigration legislation have been enacted. Marmora (2013) notes that Bolivia, Chile, Paraguay and Peru underwent institutional and legislative changes with regards to their immigration policies in the period after 1970, when military governments in the region opted to securitize immigration policy. While Bolivia in 1991 and Paraguay and Peru, in 1996, managed to pass immigration reform, Chile continues to manage immigration with legislation from over 40 years ago. Similarly, Acosta Arcarazo and Freier (2015) look at the cases of Brazil, Argentina and

Ecuador, which also passed immigration legislation during the military dictatorships in the

1970s and 1980s. While Argentina has passed comprehensive reform on the matter, as mentioned before, Brazil and Ecuador have taken a more hesitant approach creating gaps between the discourses employed by their governments and the actual policies at play. Ceriani

Cernadas and Freier (2015) note that Argentina, Bolivia and Uruguay have recently adopted immigration reforms and liberalized their policies based on notions of human rights; Costa

Rica, Mexico, Nicaragua and Panama belong to a second group of countries which have

adopted immigration reforms, however not without significant contradictions; and finally, the authors note, Chile, Brazil, and Ecuador are representative of a third group which has failed to repeal immigration legislation adopted by authoritarian, military governments.

This brief overview of other Latin American countries which have managed, with varying degrees of success, to repeal immigration legislation and policies created under military or authoritarian governments (and which no longer reflect the universalistic values embraced by their societies and democratically elected governments) is relevant in framing this study. We can certainly learn more by comparing the experiences of those countries which have been able to repeal or reform immigration legislation passed during the era of authoritarian governments in the region with those of others which have not (such as the case of Chile); in this way, we could arrive at findings about what factors have been crucial in bringing immigration reform.

These are undoubtedly important questions to be addressed, however, they are not the goal of this study. This study will not try to explain why Chilean governments after the return to democracy have yet to join the group of countries (such as Argentina, Bolivia, Paraguay and

Uruguay) which have managed to pass comprehensive immigration. Rather, noting the different ways in which immigration policy in Chile has been liberalized in spite of DL 1094, and at times in direct contradiction with it, this study addresses the question of how such pro- immigration liberalization has been made possible. In other words, it asks, how is it that

Chilean governments after the return to democracy have expanded the rights of immigrants, when they should have been highly constrained by the formal rules (DL 1094) which prescribe restriction and not liberalization? How has this been possible when governments have not been serious about immigration reform and prefer to operate under immigration regimes inherited

from a time of military dictatorship? Therefore, an important question is, how are we to understand the adoption of policies which support the integration of immigrants in spite of the rigidity and obsoleteness of the Chilean formal institutions which manage immigration into the country?

1.2 Immigration policy in settler societies: Chile in comparison

In order to situate this study, it is important to discuss Chile’s history as a settler society which historically tried to attract certain kinds of immigrants (the selection criteria and the outcomes of such policies will be discussed in more detail in Chapter 2). Chile however, differs in some respects from other modern-day settler societies, as will be further explained in this section.

1.2.1 Immigration policy in settler societies

Chile belongs to the group of settler societies, that is, the modern-day states established by European immigrants during the 18th and 19th centuries (for example Australia, Canada, New

Zealand, the United States, and in South America, Argentina and Chile).6 Settler societies emerged out of a combination of shared characteristics, primarily their temperate climatic regions and abundant land not populated by native indigenous populations (or if so, only sparsely) (Loyd and Metzer 2013). Socially and economically, settler societies developed in similar ways due to the practice of marginalization (or annihilation) of indigenous populations,

6 I do not use the terms “settler society” and “modern-day immigration-receiving society” interchangeably. The former term refers to states established by a specific form of European colonization, whereas the latter refers to modern day states which have become destinations for immigrants. In this sense, Chile is both.

strong European capital investment, abundant land and labour, and political institutions created not to extract rents that would benefit an elite (domestic or foreign), but rather created to develop the economy (Loyd and Metzer 2013). Settler societies have a peculiar relationship with the phenomenon of immigration. As Denoon (1979) points out, immigration was not purely left to economic forces, and in all of those societies which he studied (New Zealand,

Uruguay, Australia, Argentina, South Africa and Chile), during the late 19th and early 20th centuries, states tried to closely control who was allowed to immigrate, based on national origins, even if availability of labour was a pressing issue. Non-European migration was at least debated, at times accepted, and at times simply restricted. Denoon (1979, 520) points out, “The first point to be made about immigration in this period is that it was decidedly a political issue, closely controlled by state action: though many migrants believed they were making free choices, the whole process was highly structured.” More than following an economic logic, the immigration policies of settler societies followed a political one.

Given the importance that immigration played in these societies, some have argued that that settler countries have over time developed strong institutions that establish and manage their present-day immigration policies. For example, Freeman (1995, 887) notes that in the immigration countries of British origins (Australia, Canada, the United States and New

Zealand) even though their “immigration flows and policies have fluctuated over the course of their national histories, their interaction with immigration and its social consequences is intimate, of long standing, and well-institutionalized” (emphasis added); this is because in these societies the politics of immigration were debated a very long time ago, and so these politics became institutionalized in a context where migration was “vital to national development or

even survival” (Freeman 1995, 887). As a result of this early institutionalization of immigration politics, modern-day settler societies are characterized by two things: first, they have a positive view about past and present immigration, and second, their institutions in charge of immigration policy have ample experience and the public in general trusts their governments’ policies in this area. Joppke (1998, 273) makes a similar observation, pointing out that in settler societies, the process of nation-building and immigration coincided in their development, resulting in the “highly institutionalized process” that immigration policy is for these societies nowadays.

In recent years, settler societies (and all immigration-receiving countries in general) have, however, adopted restrictive and selective immigration policies, even after many of these countries removed explicitly racist and ethnic criteria. Immigration receiving countries have begun experimenting with policies known as “managed migration” (Menz 2008), which entail

“selecting newcomers based on their skills profile, reminiscent of policy approaches employed by some of the more established immigration countries, yet this concept also entails more rigorously restrictive aspects with respect to unwanted, unsolicited, and undesirable newcomers who seek alternative access paths" (Menz 2008, 2). These policies aim at ensuring an available supply of skilled and unskilled labour for particular times or industries experiencing gaps; however, fewer immigrants are given the opportunity to settle permanently in the receiving country (and ultimately, become full members of their political community through citizenship acquisition). These schemes of skill-based migration, central for immigration policy in countries like Canada, New Zealand, Australia, and others (Raghuram

2008), open doors for the skilled and highly skilled only, while limiting opportunities for those

immigrants considered low-skilled or unskilled. Usually, the second group is not banned from migrating altogether, but is only allowed to do so under temporary conditions. Increasingly immigration receiving countries seem to move towards schemes that recruit both skilled and low skilled workers on a temporary basis (Stasiulis 2008).

The above discussion on the importance of immigration and the development of immigration policies in settler societies presents a puzzle in understanding the recent pro- immigration policies adopted in Chile. First, we could hardly describe the Chilean immigration regime as one that is highly institutionalized as a result of historical debates about what role immigration should play in nation-building; its institutions do not resemble the institutions of other present-day settler societies, as described by Freeman. As experts of Chilean immigration policy point out, state institutions have been surpassed by the present-day situation. These criticisms point out that the current legislation created over 40 years ago is anachronistic and does not correspond anymore to the present-day reality of increasing migration and a country that is more integrated with the economic processes in the Latin American region and worldwide (Cano 2009; Lara Escalona 2014). The system created under DL 1094 is highly bureaucratic and makes the migration process difficult, given that it posits a simplistic categorization of immigrants, which means a long and complicated process for many migrants who wish to find employment or migrate permanently (Cano 2009; Stefoni 2002b). Second, without adhering to a model of managed migration, policies provide greater access to rights and social services for immigrants, and allow for their permanent settlement.

In general, experts agree the recently adopted policies, albeit a good thing for immigrants, are mostly dependent on accidental factors, subject to change, and fail to be part of

an explicit state policy, which translates into an uncoordinated perspective by public administration (Cano 2009; Stefoni 2011a). Some have gone as far as describing policies as “the policy of no policy,” (Stefoni 2011a) or the “policy of mood” (Thayer 2015), to describe the fact that recently-adopted policies are temporary and not based on a state-sanctioned view on what immigration should be for Chile for years to come. In sum, this is a very different picture from what Freeman describes is the case in other settler societies, where the state, through experienced institutions, is capable of imposing a view onto society of what immigration policy should be able to achieve in the short and long terms. Chile does not clearly follow the path taken by other settler societies, which developed more robust and experienced public apparatus in charge of creating and managing immigration policy.

1.2.2 Public opinion on immigration in settler societies

Data from the World Values Survey allows us to compare public opinion on immigration with other settler societies (Argentina, Australia, New Zealand, and the United

States). When asked what group of persons they would not like to have as their neighbor, the opinion of Chileans has become more favourable about immigrants over time (Figure 1.1).

While in 1996 11.7 percent of Chileans mentioned they would not like a have an immigrant or foreign worker as a neighbor, this percentage had declined to 7.6 by 2012. A similar trend can be observed in Argentina. In contrast, the percentage of those who would not like to have an immigrant as their neighbor increased in Australia, New Zealand, and the United States.

Opinions on whether nationals should be given priority over immigrants when jobs are scarce are more stable across the selected countries. However, both Chileans and Argentineans had the higher levels of respondents expressing nationals should be given priority when employment is

scarce (Figure 1.2). Lastly, Chileans are the group with highest levels of mistrust towards immigrants (Figure 1.3). When asked if they trust people of another nationality, over half of

Chileans responded negatively (i.e. either “not very much” or “not at all”) in both surveyed waves, whereas the percentage did not go over 44 percent in the rest of the countries.

Figure 1.1 Percentage of respondents who would not like to have an immigrant/foreign worker as neighbor 30

13.6 15 12.7 11.7 10.7 10.5 9.5 9.710.1 10 7.6 7.3 5.7 5.9 5.6 5.4 5.9 4.6 5 2.8 2.8

0 Chile Argentina Australia New Zealand United States

1995-1998 2000-2004 2005-2009 2010-2014

Source: World Values Survey Data for 2005-2009 for Australia and New Zealand not available

Figure 1.2 Percentage of respondents who agree nationals should have priority over immigrants when jobs are scarce

80.3 77.6 85 79.8 72.4 73.8 68 71.9 65 60.6 55.4 51.8 51 51.6 50.7 51.9 49 50.5 45 45 41.6

-15 Chile Argentina Australia New United Zealand States

1995-1998 2000-2004 2005-2009 2010-2014

Source: World Values Survey Data for 2005-2009 for Australia and New Zealand not available

Figure 1.3 Percentage of respondents who do not trust people of other nationalities

80 69.7

60 54.3 43.6 40.7 33 40 29.7 25 24.8 20

0 Argentina Chile Australia United States

2005-2009 2010-2014

Source: World Values Survey

Data from the Latinobarómetro survey comparing attitudes towards immigration amongst Latin American countries, especially those which were settler nations and continued promoting European immigration (such as Argentina, Brazil, and Uruguay), reveals Chileans hold more negative views about immigration than their Latin-American counterparts

(Corporación Latinobarómetro 2009-2015). While there was a decrease from 2009 to 2015,

Chileans are still the country with the highest percentage of respondents who to believe that immigrants take jobs away from nationals (Figure 1.4). Likewise, in 2009, Chileans where the most likely to respond that there should be more laws prohibiting foreign nationals from immigrating to their country; although by 2015, Argentina took the higher spot, with over 40 percent of respondents, Chileans were a close second, with 35.8 percent of respondents believing in more requirements should be demanded from those seeking to immigrate (the odd case here is Argentina, which increased nearly 10 percentage points between 2009 and 2015, which could be due to backlash against the generous immigration reform mentioned before).

Figure 1.4: Percentage of respondents who strongly agree or agree immigrants take jobs away from nationals 70 65.1 60 53.6 55.4 47.4 48.2 50 43.7 40 29.9 30 26.6 20 10 0 Argentina Brazil Chile Uruguay

2009 2015

The comparative data discussed above is echoed by national data indicating that

Chileans are still quite conservative in their belief that immigrants can create a positive impact to their country. A 2006 survey by Universidad Diego Portales (Universidad Diego Portales

2006) indicated that 67 percent of Chileans believed that there were more foreigners than what could be accommodated by Chilean society, 65 percent believed foreigners steal job opportunities from nationals, and only 38 percent indicated foreigners have a positive impact on Chilean culture. In addition, 63 percent of respondents indicated there should be some form of restriction to immigration of foreign workers. A more recent survey conducted by the

University of Talca (2015) indicates a similar trend in perceptions. In this case, 72 percent of respondents indicated that they strongly agree or agree that their country “is being invaded by foreigners,” 48 percent that foreigners are poor, and 50 percent that immigrants have low levels of education. The last two figures are interesting because according to government data, immigrants are not poorer than Chileans when comparing income levels (with 9.7 percent of

immigrants considered poor when compared to 11.7 percent of Chileans),7 and neither are they less educated than the domestic born population; while Chileans over 18 years of age have an average of 11 years of formal education, the average for immigrants is an additional 1.6 year

(Ministry of Social Development 2015).

Thus, we arrive at the following situation. Chile is a country where public opinion is not strongly pro-immigration, and to further complicate things, authorities operate under immigration legislation that is quite outdated and meant to keep immigrants out and hinder their settlement. Under these circumstances, it would seem difficult for a pro-immigration agenda to be adopted by the government. However, this is precisely what has happened in

Chile after the return to democracy. How are we to understand this change? To do so, it is important to first review some characteristics of Chilean politics in the post-authoritarian period.

1.3 Politics in the post-authoritarian era

1.3.1 Regime change in the 20th Century: the long road back to democracy

For over 40 years, Chile was the only Latin American country without a successful military cup or irregular change in government. This changed in 1973 when the democratically elected government of Salvador Allende, a militant of the Socialist Party, was overthrown in a military coup. Allende’s arrival to power three years prior was supported by the Popular Unity

7 However, while immigrants are not poorer than Chileans when comparing income levels, they are when poverty is measured multidimensionally. For more on multidimensional poverty, see Sen (1976), Bourguignon and Chakravarty (2003).

Party, a coalition of leftist political parties. His government faced challenges from early on, including a majority opposition in congress, clandestine US operations, and internal conflicts within his Popular Unity coalition (Loveman 2016). More important, Chile’s dominant classes were worried about Allende’s Chilean road to socialism, which ultimately sought for the peasant and proletariat classes to achieve control of the state, albeit from within a democratic regime (Barton 2004).

The arrival to power of a Marxist candidate precipitated the Chilean’s Armed Forces involvement in politics, which saw as their duty to contain the spread of Marxism in the country (Policzer 2009). Thus, after months of planning, on September 11, 1973, the Armed

Forces launched an assault on the presidential palace, marking the beginning of a 17-year period of military rule. On that same day, the leaders of the coup established a military junta, headed by Augusto Pinochet, the Army’s Commander-in-Chief. The junta dissolved congress, banned political organizations, closed radio networks, and imprisoned or executed Allende’s ministers; Allende himself died on that day8 (Policzer 2009).

The military government quickly moved to brutally repress members and sympathizers of Popular Unity. Scholars have noted how during the first years of the regime, repression was the most brutal, as members of the armed forces did not clearly target only Popular Unity sympathizers, but their repression was indiscriminate (Fruhling 1983; Policzer 2009). Another factor that contributed to the brutal violence of this period was that the Armed Forces still had

8 While the military junta declared on the following day that President Allende had died by suicide, this version of events has been contested throughout the years. In 2011, Allende’s remains were exhumed as a part of a government-led investigation into his death, which concluded that he had died by suicide on September 11, 1973 (Castillo 2011).

some support by certain groups in Chilean society. As time progressed, repression became more selective and less public. As part of its strategy to repress opponents, the regime systematically employed torture, kidnappings, summary executions and executions ordered without due process (Universidad Diego Portales 2003). Two reports produced after the end of the dictatorship, one by the National Commission for Truth and Reconciliation, in 1991, and the report by the National Commission on Political Imprisonment and Torture, in 2004, give an account of the nature and volume of repression. The first commission found 2,279 deaths resulting from human rights violations or political violence during the dictatorship9

(Universidad Diego Portales 2003). The second commission obtained 35,000 witness accounts of forced detention and torture between 1973 and 1990 (Universidad Diego Portales 2005). It also found that more than 90 percent of those detained were also tortured.10

Not only did the regime seek to impose its political agenda, but this came hand in hand with the adoption of a new economic order, namely the disruptive adoption of the neoliberal economic model. The adoption of this model by the Pinochet government was the first experiment in the world in the formation of a neoliberal state (Landerrechete Moreno 2013;

Harvey 2007), that is, a state which reflects “the interests of private property owners, businesses, multinational corporations, and financial capital” (Harvey 2007, 7). A group of

Chilean economists trained at the University of Chicago formed working relationships with the country’s business elites; then they were brought on to government by Pinochet to work on

9 Because the commission did not have enough time to pursue cases of torture, those were excluded from its report, unless they could be tied to a death or forced disappearance. 10 However, the commission recognized the total number of instances of forced detention and torture to be higher, since not everyone who had been a victim would want to come forward with their testimony and make their identity public.

rebuilding the country’s economy. Under their advice, the Pinochet government adopted pro- market reforms, reversed nationalizations (with the notable exception of copper), privatized public assets, opened private resources for unregulated exploitation, and privatized social security, among other measures (Harvey 2007). With the 1980s economic crisis, the Chilean state retrenched even more from its role leading the country’s socio-economic development, which ultimately led the poorer classes into even more precarious conditions and to widespread inequality (Silva 2004; Landerrechete Moreno 2013). To this day, Chile has a GINI coefficient of

0.46 (OECD 2018), the highest for an OECD country, and similar to countries like Cameroon and

South Sudan (World Bank 2017).

The dictatorship ended with the peaceful transfer of power to a democratically elected government in 1990. Two years before, Pinochet had been defeated in a plebiscite where the majority of voters opted to hold democratic elections instead of allowing him to rule the country for another 8 years.11 As per the plebiscite’s results, presidential elections were held in

1989; Patricio Aylwin, of the centre-left Concertación Coalition, won with 55 percent of the vote, followed by the centre-right candidate Hernán Büchi, of the centre-right Democracy and

Progress Coalition, who received nearly 30 percent of the vote. On March 11, 1990, Chile returned to a democratic government when Aylwin received the presidential sash moments before still worn by Pinochet. And yet, Chile’s full recovery from the legacies of the

11 The 1980 constitution established that a plebiscite should take place in 1988. With this plebiscite, the military regime expected to transition its rule to an authoritarian but civilian-led government (headed by Pinochet). The constitution established that Chileans would choose by way of plebiscite, in 1988, whether they wanted Pinochet to continue leading the country until 1997 or to hold democratic elections instead. In this plebiscite, Pinochet was defeated, which gave way to the presidential election held in 1989.

authoritarian period would take many more years to complete, or, as in the case of immigration reform, are still pending.

1.3.2 Dismantling authoritarian legacies?

In spite of Chile’s peaceful and widely accepted transition to democratic rule, political actors have remained, for much of the post-authoritarian era, constrained by the legacies of the authoritarian regime (Garretón 2010). These legacies are accentuated by Chile’s “extreme centralism” (Siavelis, Valenzuela Van Treek, and Martelli 2002), that is, the concentration of political and economic power in the capital city of Santiago. As a unitary state established since the 1833 constitution, Chile never had a pole to counterbalance the dominance of Santiago.

Later on, the Pinochet regime eliminated regional representation and appointed heads of local governments, as part of its efforts to concentrate power. In the post-authoritarian era, regional and municipal authorities still have only the political powers which the centre has decided to confer upon them, largely relegating them to administrative matters (Siavelis et al, 2002).

One source of such constraints comes from the 1980 constitution inherited from the

Pinochet government, which has defined the nature of Chilean presidentialism and the executive-legislative relationship in the post-authoritarian period. The constitution ensured the president held a great deal of power in contrast to a weaker congress (Siavelis 1997b, 2000). To avoid another political and economic crisis such as the one the country experienced in the 1970s, the military regime reasoned the executive should be able to concentrate power above the legislative branch (Siavelis 2000).

As such, the president enjoys many constitutional prerogatives, which have been termed an “exaggerated presidentialism” (Siavelis 2000). For example, the president has almost

exclusive control of the budget and exclusive competence on legislation changing the political and administrative division of the country, in addition to others. In order to override a presidential veto, a two thirds legislative majority is required, making the veto threshold very high. In addition, the president enjoys the power to control the legislative process by way of presidential urgencies. A president may tag a legislative initiative as “urgent,” forcing congress to take legislative actions within 3 to 30 days (3 day for immediate urgency, 10 for immediate urgency, and 30 for simple urgency). Because presidential bills usually are introduced with urgency, this causes legislator-sponsored bills to be delayed (as the legislative branch does not have urgency powers). The president can, moreover, call the legislature into extraordinary session, during which only executive introduced bills can be considered. These two features, urgency powers and power to call in extraordinary sessions, make the Chilean president a strong agenda setter in the legislative process.12As argued by Siavelis, the executive is not only a co-legislator, but the most important legislator in Chile. Between 1990 and 1994, only 8.2 percent of laws passed originated in the legislature, and only 25 percent did between 1994 and 2000.

Not only have the executive-legislative relationships been shaped by the constitutional framework inherited from the Pinochet government, but the party system has been also shaped by these legacies. For much of the period after the end of the dictatorship, Chile has been governed by the Concertación coalition, a coalition of centre-left parties that first joined forces to defeat Pinochet in the 1988 plebiscite, and later would go on to win all presidential elections

12 The president also enjoys other sources of power stemming from the constitution for example, the capacity to declare states of siege, constitutional exceptions, emergencies, and catastrophes, all without congressional approval, veto over legislation (which as mentioned before, requires a 2 two thirds majority to be overturned), and the capacity to appoint posts such as the comptroller general, commanders of the armed forces, and supreme and appellate court justices (Siavelis 2000).

between 1990 and 2011 and once again in 2014). Coalitions were a necessary thing in the electoral system caused by the majoritarian, binomial system, in place from 1989 to 2015.13 The

Concertación alliance managed to sustain power thanks to the creation of “elaborate power sharing arrangements among parties to assure widespread representation and avoid conflict”

(Siavelis 2013, 18). In essence, the coalition was so successful at dominating Chilean politics thanks to building consensus between “the government and opposition, and between political parties and powerful social groups” (Sehnbruch and Siavelis 2013, 2-3). Such arrangements were necessary first, so the governing coalition would not crumble, and second, to assuage powerful economic groups (and the military backing them) that a Concertación government would not threaten the economic status quo put in place by the Pinochet government.

These agreements, labelled “the politics of consensus,” have come at the expense of undermining the powers that a president has by way of constitutional prerogatives, as previously discussed. While the president certainly enjoys many exclusive powers, he or she still has to work with other political actors, namely congress, in order to maintain a working coalition. For example, Siavelis (2006) notes, while the president enjoys the power to pass budgets, Concertación presidents nonetheless engage in informal negotiation and consultations with members from other parties in the governing coalition and the opposition to pass budgets which are agreeable by all. Another mechanism which Concertación presidents have employed to manage workable coalition governments has been the cuoteo (“quota-sharing”), an informal mechanism by which presidents dole out cabinet, high-ranking government posts, and

13 The binominal electoral system was devised in order to avoid fragmentation of the party system and thus deny entry to more radical leftist parties. For a review of Chile’s binomial system see Siavelis (1997a) and Gamboa and Morales (2016).

candidacies among members of the coalition. Post-authoritarian governments have also been slow to dismantle the economic legacies of the Pinochet regime, mainly guided by the idea of economic stability (Landerrechete Moreno 2013). Politicians during the early 1990s could simply not espouse radical ideas or propose social welfare reforms. Doing so could have disrupted the consensus. Instead, profound adjustments to social policies were expected to be “an important long-term objective that had to be reached gradually” (Contreras and Sehnbruch 2013, 244, emphasis added). In other words, governments after the transition saw as justifiable to sacrifice social reforms because something more immediate, namely the political viability of democratic governments, was at stake.

These characteristics of Chilean political life after the dictatorship have led some to conclude that democracy in Chile is incomplete (Garreton 2010; Silva 2004). But they also reveal a particular pattern of political life in Chile, namely, a gradualism that permeates politics and policy-making. Through the many years of working within institutional constraints, consensus- seeking, and seeking to avoid political and social crises, political actors have worked by gradually introducing changes. In other words, constraints such as the ones thus far described do not mean that actors have not pursued change, but explained by Weeks and Borzutzky

(2012, 103) “[the focus on consensus] does not mean political paralysis, but rather that change, when it happens, has been most often extremely slow and gradual.” Another aspect which permeates Chilean political life is the depolitization of democracy, which refers to the translation of “social problems […] into technical terms” (Silva 2008, 22). This depoliticization has been primarily carried through the incorporation of technical, or more precisely technocratic, actors in important policy areas such as the economy, health, education, and

others. While technocratic policy-making was certainly a crucial element for the Pinochet regime (Huneeus 2000), post-authoritarian presidents have continued with this trend of leaving the management of both economic and social agendas in the hands of technocrats (Silva 2008).

By doing so, presidents have sought to avoid the impression that politicians are “playing politics” with social and economic policies, but that instead, highly specialized “technicals” are in charge of creating and implementing scientific, apolitical measures.

In sum, while there are continuities with the authoritarian regime stemming from the view that too radical change can lead the country back to a state of political and economic crisis, the dismantling of these continuities and legacies has been a slow, gradual, and to an extent a depoliticized process. These features of Chilean politics will become relevant for the central argument developed in this study, namely, that immigration policy has followed a similar trajectory, where actors operate under constraints imposed by the authoritarian regime, but instead of dismantling these, policy makers opt for more gradual and incremental changes to policy.

1.4 Explaining immigration policy

Explanations of immigration policy reflect on the question of under what circumstances are pro-immigration policies adopted. As will be discussed in this section, a group of theories sees the state as the primary actor in deciding immigration policy. A second approach places greater emphasis on the groups within society which stand to lose or win as a result of immigration. More recently, a third body of work has looked at the institutional factors, those of liberal democracies, in enabling actors to pursue pro-immigration policies.

1.4.1 Bringing the state back into immigration

During the 1980s, scholars of immigration began drawing attention back to how the state plays a central role in immigration policy. Earlier theories that tried to account for why immigration takes place would either reduce the phenomenon to the voluntary action of individual people guided by the promise of economic gain (for example Lee 1969), or to a structural process caused by the economic unevenness between nations (for example Lewis

1954, Castles and Kosack 1973, and Piore, 1979). Zolberg (1981) criticized both of these approaches, which he argued, led to a neglect of the political dimension of migration, and instead, suggested grounding discussions on the political fact that the world is divided into mutually exclusive and legally sovereign territorial states (across which migration takes place).

In other words, migration is not simply human relocation, but involves the transfer of individuals “from the jurisdiction of one state to that of another state” (Zolberg 1981, 5). This called for a re-evaluation of the role of the state in relation to immigration. In other words, the phenomenon of migration is not only an economic phenomenon that occurs without connection to states’ policies. Rather, international migration departs from the fact that states decide whether to confer upon individuals the right to enter their territory (or not) and under what political conditions. According to the statist approach, the state itself is seen as “an important political agent in its own right” (Rudolph 2003, 617), capable of responding to interests, defining issues, providing information, and shaping discourse. The state is thus an important actor in explaining immigration policies, and international migration is seen as a political process as much as an economic one.

This re-introduction of the state into the study of immigration policies led scholars to describe how states have particular interests they seek to fulfill by enacting certain policies

(Adamson 2006; Hollifield 2004, Weiner 1992). Under statist approaches, we see that states have mainly two interests when it comes to immigration policies. First, states wish to preserve their sovereignty, mainly articulated through policies of national security and control in relation to immigration, while at the same time achieving economic policy goals (Weiner 1992).

International migration has important implications for national security, as it can damage a state’s capacity to control its borders and can change its national identity, it can shift the balance of power among states, and it can create conflict in the international system (Adamson 2006).

Second, modern states have rapidly evolved into migration states, meaning that the rise of trade and international linkages puts states in a situation where they have to accept new and increased migration (Hollifield 2004). Therefore, states use their immigration policies to try to achieve this delicate balance between being part of the international system of trade without drastically altering the rules for who can become a member of its political community.

1.4.2 Interest-based explanations: immigration’s winners and losers

A second body of literature attributes immigration policies not to the state, but to the different domestic groups which stand to win or lose out of the adopted immigration policies.

This approach sees states as potentially having a variety of purposes when debating immigration, but the outcome of this debate depends on who participates in the political process. Underlying this body of work is Freeman (1995, 885), who has famously argued that immigration policies in liberal democracies are “mostly a function of which fragments of the public have the incentives and resources to organize around immigration issues.” This occurs

because in liberal democracies, public opinion (which largely tends to be anti-immigrant) is slower to crystalize; timely and accurate information on immigration is hard to come by, and the public simply does not have the resources to form an anti-immigration interest group. Thus, immigration policy reflects the interests of those who do have the incentives and resources to organize around migration issues, those who stand to benefit from it, such as industries that depend on a supply of immigrant workers (mostly unskilled), industries such as construction and real state, and the families and ethnic groups of those who make up the migratory streams.

Because the costs of immigration are diffuse, whereas its benefits are not, Freeman argues “The typical mode of immigration politics, therefore, is client politics, a form of bilateral influence in which small and well-organized groups intensely interested in a policy develop close working relationships with those officials responsible for it” (1995, 886). In a similar fashion, Joppke

(1998) poses the question of why liberal states accept immigration that they seemingly do not want. Referring to the case of the United States, he argues, part of the reason for its failure to curb unwanted migration has to do with the logic of client politics. The pro-immigration lobby consisting of employers, and ethnic and civil rights groups worked together to oppose what they perceived would be discriminatory employer sanctions, arguing that ethnic or racial discrimination were against the civil rights of individuals.

The interests of the domestic labour force are crucial in understanding what path immigration policies take. Following on the view that immigration policy is “the outcome of competitive struggle between organized interests and their representatives in the political process,” Kessler (1999, 13-14) argues that the goal of domestic labour is to lobby for restrictions on immigration, whereas capital or landowners would benefit from open policies. The outcome

depends however, on the government’s incentives to respond to these contradicting constituencies. When organized labour and pro-labor government exist, the result is closed policies, and the opposite is true when labour’s influence is limited and instead governments respond to the interests of capital and landowners. Hall and Soskice (2001) also present a similar model, arguing that in states with liberal market institutions, there is greater pressure to liberalize immigration because labour costs are so important for firms’ competitiveness.

Consequently, firms will pressure governments to ensure a favourable immigration regulatory framework that allows them easy access to low-cost labour. Wong (2006) presents a different view of interest groups with regard to immigration policy. She argues scholarship tends to present groups as having only economic goals. Analyzing the post-1965 period in the United

States, Wong argues that expansionist policies were a result of not only lawmakers responding to employers’ demands to access immigrant labour, but also of ethnic organizations that were able to influence policy outcomes by “Casting their demands for rights in universal terms, they formed alliances with other civil rights and humanitarian organizations. It was these coalitions that helped them sway the votes of moderate and undecided lawmakers” (2006, 2-3).

1.4.3 Liberal states meet immigration

Institutional explanations of immigration policies have focused on the institutions of the liberal state and how they promote pro-immigration agendas. Less focused on who the winners or losers of immigration are, scholars of institutionalist theories point out there are certain values and norms that are intrinsic to liberal states which make them fertile ground for immigrant-friendly policies, even though they main mean a constraint on states’ sovereignty.

Interest-based approaches to immigration policy are grounded on the model of clientelistic politics outlined by Freeman. But other scholars have called attention to the fact that economic interests are not the only drivers of policy. Noting the shortcomings of the interest-based approach, Hollifield (1998, 598) points out “the sufficient conditions for migration are political.

States must be willing to open their borders for exit and entry; such openness is not simply a function of interest group politics or cost-benefit analysis. Ideas and institutions play a crucial role in determining openness and closure.” Liberal states are in an especially difficult position when it comes to creating immigration policies. If they wish to control migration, they must be prepared to adopt fairly illiberal measures, such as the closing or sealing of borders, or limiting the rights and liberties of foreigners or nationals, which “may threaten the foundations of the liberal state itself” (Hollifield 1998, 623). In order to avoid taking anti-liberal measures, states then resort to multilateralism to control the “orderly movement of people” across their borders.

Similarly, Hampshire (2013) has pointed out there exist contradictions at the core institutions of the liberal state, which pull in different directions and produce different policy outcomes. Two facets of the liberal state, representative politics and nationhood, pull towards restrictivist policies. This is because in a liberal state, politicians have to take into account public opinion, which tends to be against immigration, and because nationhood means that a culture or society is exalted and protected while others are marginalized. On the other hand, the liberal state is a constitutional and a capitalist state, both of which pull towards expansionist policies. This is because under a constitutional state, individuals are protected from the absolute power of the state and these protections, usually codified in the constitution, apply to all persons, irrespective

of national origin and migratory status, and second, because immigrant labour has become a structural requirement of capitalist states.

While scholars agree that the liberal states are faced with simultaneously contradictory forces, there are two different approaches as to the source of expansion of rights for immigrants.

Some see this source as exogenous to the state, imposed by international norms. For example,

Sassen (1998) argues that in their turn to multilateralism to manage the movement of people, states give up some of their sovereignty. The international economic regime forces highly developed states into operating in a larger system of rules and regulations, which are codified and implemented by supranational organizations. In contrast, while states are prepared to relocate some of their authority to these organizations, they are less willing to relinquish control on immigration policy. But in reality, Sassen argues, states are not so sovereign in determining their immigration policies, and are highly constrained by an array of “rights and obligations, pressures from both inside and outside, from universal human rights to not-so-universal ethnic lobbies” (57).

One important source of limitations for liberal states comes from the international human rights regime, which entails displacement from state to supranational in the governance if immigration policy (Sassen 1998). This is because human rights do not distinguish between national and foreigner; membership into the nation-state is not the ultimate criterion for accessing rights, residence is. So, when a state fails to enshrine these rights, the international regime can then impinge on a state’s sovereignty. Soysal (1991) presents a similar view on the international human rights regime, arguing that guest workers in Europe are becoming more and more incorporated (i.e. gaining access to rights and institutions such as education systems,

welfare schemes, and the labour and housing markets) by their host countries largely because national citizenship has ceased to be the main criterion assigning rights and privileges to individuals, and instead rights are assigned under the criteria of universal personhood, not nationality. A state’s right to deny entry to non-citizens (for example on national security, public order or public health grounds) is severely constrained by a trend towards the international standardization of the rights of non-citizens. Formal citizenship is seen as an invalid criterion to exclude individuals from social rights. Thus, Soysal argues, the experience of

European nation states with guest worker programs show that polity membership is being radically altered, transforming into a post-national model. Under this new scheme, the claim to entitlements based on membership in the nation-state is replaced by human rights, “Thus, in a sense, the individual transcends the citizen (1991, 204). Sassen (1998) notes how courts in

Europe and the United states have been crucial in establishing a person-based conception of rights. Courts have defended non-citizen residents’ access to social rights, making the difference between citizen an alien less crucial. The judicial venue is seen as an important factor in the advancement of rights for non-citizens.

Others see the source of these rights as endogenous to the state, that is, not arising from the international regime imposing on the state. Departing from the universal or person-based model of rights, Joppke (2001) argues that for immigrants, the source of rights must be found in the state, because “in the modern state there are no rights unless they are legally codified and implemented.“ However, he sides with others in seeing courts as crucial institutions in the advancement of immigrants’ rights, as courts are isolated from much of the public pressures that democratic governments are accountable to. Guiraudon (1997) notes how policy venues

that are more conducive to the expansion of aliens’ rights are precisely the executive branch

(administration and government), and the judicial branch. This occurs because these policy venues are restricted and relatively insulated from politics (1997, 12). On the other end, the public and electoral arenas tend towards the exclusion of aliens, not granting them rights. Thus,

Guiraudon posits that aliens’ rights are expanded when debates are closed, and that pro-aliens’ rights actors will tend to pursue strategies of stealth. Likewise, when such debates are highly politicized, rights of aliens are not likely to be expanded or granted. Hampshire (2013) argues courts are the domestic venue where pro-immigrant interest can seek recognition of rights for non-citizens, and courts many times side with immigrants, imposing (domestic) constraints to what are usually anti-immigrant executives. When executives try to deploy anti-immigrant measures, such as forcibly deporting people, immigrants and their allies find in courts a venue to challenge anti-liberal measures.

1.4.4 What is missing?

This overview of the three main approaches to explaining immigration policy (statist approach, interest-based approach, and institutional approach) provides us with important explanations as to how immigration policy is decided or negotiated. However, except for the last of the three approaches discussed (liberalism), there is little attention given to what

Freeman calls “the locus of decision making for immigration” (2000, 8). The approaches so far discussed present the state as either a black box without clearly identifying what are the groups that are part of its composition, or an as empty venue which is captured by the interests with the most resources or more capable of strategically positioning themselves. This study argues the state is neither of the two completely. This study agrees with the early call by Zolberg (1981)

to bring the state back into the explanations for immigration policy, because immigration entails not just the movement of people, but people moving from the jurisdiction of a sovereign state into the jurisdiction of another one. Or as Hollifield (1998) has presented the issue, the economic dimension of migration is a necessary condition, but its sufficient conditions are political.

However, we must be careful not to present the state as an empty vessel to be captured by the most resourceful of interests. This is the case because state institutions have the capacity to promote their own agendas, goals and interests, with a degree of autonomy from groups from society. Freeman points out, democratic states are not all equally vulnerable to social pressures, and they vary in their capacity to establish long-term policies and impose losses on certain groups, and this depends a great deal on “the views of the professional civil servants in the administration, […] the cabinet or the minister responsible for immigration, or […]subject to the interventions of individual parliamentarians” (2000, 8). Similarly, Hampshire (2013) argues the factors driving migration tend to be seen as state exogenous, but in reality, the state is not one actor, but many, with discernable interests and values, who are in charge of implementing policies.

The approaches to immigration policy discussed (statist, interest-based and institutionalist) are not sufficient to help us understand the central puzzle in this study, namely, how is it that actors have found solutions to the problem of “the new migration” while constrained by “the same old institutions.” This study puts forward that while the answer is closer to the liberal approach (which points out certain venues are more conducive to pro- immigration policies as they are shielded from anti-immigration public debates), the question still remains: if institutions constrain actors to follow certain rules (in the case of Chile, these

rules would dictate that actors should remain restrictive about immigration), then how do actors go about altering that institutional reality and establish alternative solutions? In order to answer this question, we must turn to the study of political institutions and how change happens in them.

1.5 Explaining change: moving past “the same old institutions”

1.5.1 The “building around institutions” model of change

Around the late 1980s and early 1990s, scholars of new institutionalism began addressing the perceived shortcomings of behavioralist approaches, namely, the idea that observed behavior should be the datum of political analysis, “for behavior occurs in the context of institutions and can only be so understood” (Immergut 1998). Institutions, which can include

“formal organizations, informal rules and procedures that structure conduct” (Steinmo, Thelen,

Longstreth 1992), are important because they “structure power relations among political actors,” and in doing so, they privilege some actors and disadvantage others.” Institutional configurations can affect the way in which conflicting interests are expressed, and in this way affect policy outcomes (Peters, Pierre and King 2005). Initially, new institutionalists saw institutional configurations as path-dependent social processes, meaning that large consequences may result from small or contingent events (Pierson 2004). These processes are prone to positive feedback, because the costs of switching from one alternative to another in certain social contexts tends to increase over time. While this approach is useful in explaining the endurance of political institutions, with its emphasis on how once rules and patterns or

behavior become institutionalized, it is less useful in explaining how institutional change takes place (Peters, Pierre and King 2005).

Subsequent scholars tackled the problem of institutional change. For example, Kingdon

(1985) and Baumgartner and Jones (1993) proposed a model that explains change as sudden punctuations that disturb the long-standing equilibrium of institutions or the policy monopoly of some organizations. However, the punctuations are difficult to predict and hence we cannot predict future paths (Peters, Pierre and King 2005). Others proposed a model of critical junctures (Collier and Collier 1991), where periods of stability are altered by critical junctures, after which institutions again become more stable and locked in (Collier and Collier 1991). The issue becomes once again, institutional continuity; by emphasizing the return to stability after periods of punctuated equilibria, these models quickly tend to exaggerate the continuity of institutions (Levitsky and Murillo 2013).

A different approach to the problem of institutional change was put forward that does not see change as resulting from periods of radical disruption followed by long periods of stability. These models conceive of change as a slow and gradual process instead (Thelen 2004;

Streeck and Thelen 2005; Mahoney and Thelen 2010). According to the gradual and slow models of change, “Rather than abruptly dismantling the rules, then, actors slowly subvert, build around, or redirect them” (Levitsky and Murillo 2013). One thing about rules which allows for their slow subversion is that they might leave something up to interpretation: rules might not provide enough contextual information, they could be poorly codified, or fail to make assumptions explicit. As Mahoney and Thelen (2010, 11) note, “Even when institutions are formally codified, their guiding expectations often remain ambiguous and always are subject to

interpretation, debate, and contestation. It is not just that unambiguous rules are enforced to greater and lesser degrees. Rather, struggles over the meaning, application, and enforcement of institutional rules are inextricably intertwined with the resource allocations they entail.” As a result, when ambiguities arise, actors can engage in debates over what interpretations should prevail. When actors have the freedom to contest or interpret rules, there is potential for change.

Similarly, Ostrom has pointed out how rules have more than one way in which they can be interpreted. She discusses her approach to rules, noting that “I view rules as directly affecting the structure of a situation in which actions are selected. Rules rarely prescribe one and only one action or outcome” (Ostrom 1986, 6). For example, one kind of rule requires actors to take one and only one course of action (in Ostrom’s example, a judge must impose a given sentence if a defendant is found to be guilty by a jury). But other rules, such as those that prohibit or those that permit an outcome, can produce more than one scenario. In the first case, anything that is not explicitly forbidden can be a permitted outcome, and in the second case, the rule may allow for more than one outcome. The idea is that rules are not always exhaustive; actors can change them through their different interpretations, as long as these interpretations are not explicitly prohibited.

Institutionalism is important because it brings our attention to how issues of compliance are crucial in understanding change. If rules are so crucial in understanding how institutions work, because a stable and functioning institution means actors abide by the given rules, then it follows that alterations to how rules are applied have transformative effects on institutions. This is important in understanding how it has been possible for government and non-government actors to advance a pro-immigration agenda in Chile; this study argues that actors have

advanced a pro-immigration agenda by replacing, or “building around” the formal institutions, and creating other institutions that replace them because, as has been pointed out, the formal framework is no longer workable. In the classification proposed by Helmke and Levitsky (2004), actors have created “competing institutions,” because DL 1094 is so ineffective at this point, that actors have adopted new rules meant to produce policies that contradict some its basic principles.14

Coming up with new rules that compete against the principles of DL 1094 has been a slow, cumulative process, the result of the accumulation of small changes over time, changes that have come about as actors find ambiguities and gaps in institutions and “build around” with practices that are more open to immigration. In doing so, actors have not formally replaced old institutions; this has not been necessary in the sense that both sets of institutions exist parallel to one another. Because there continues to be ambiguity in the “guiding expectations,” actors not formally authorized to work on immigration policy have nonetheless inserted themselves in this policy-area. However, it should be clear that this is a kind of second-best solution for those deeply invested in reforming Chile’s immigration legislation and policies. As previously mentioned, actors involved in immigration policy in Chile do not have the power to bring about immigration reform. While they do not lose track of the goal of immigration reform, they realize that this will take many more resources to accomplish. The competing institutions they have created to solve the major issues created by the absence of immigration reform are

14 While Helmke and Levitsky’s analysis of the interplay between formal and informal institutions is useful in explaining how actors employ other rules to either substitute or compete against ineffective formal institutions, it should be noted that the kinds of institutions that will be discussed in this study cannot be considered as informal in the sense meant by Helmke and Levitsky, as they are not enforced outside official channels.

still far from the optimal solution, but at the same time represent a tremendous shift in policy from DL 1094.

1.5.2 Depoliticization of immigration policy

As discussed in the previous section, actors have pursued replacing or building around existing institutions as they are not able to bring about their preferred option, namely immigration reform, and so they find in informal institutions a second-best solution. Chile’s existing institutions of immigration policy are the current legislation, DL 1094, and the venue in charge of its application, DEM, have become overrun in their capacity to manage the country’s new immigration reality (i.e. more immigrants arriving, more diverse backgrounds, economic migration, Chile needs more immigrants). However, instead of building new institutions from the ground (that is, passing immigration reform and creating different, more robust institutions in charge of its implementation), other institutional venues not formally in charge of immigration policy have been recruited into this policy area. Even though formal rules do not explicitly give them competence to do so, there are no explicit prohibitions to their involvement either.

The shifting of immigration policy to new institutional venues introduces another analytical element to the analysis of immigration policy in Chile, namely, the depoliticization of policies. Flinders and Buller (2006, 295) define depoliticization as “the range of tools, mechanisms and institutions through which politicians can attempt to move to an indirect governing relationship and/or seek to persuade the demos that they can no longer be reasonably held responsible for a certain issue, policy field or specific decision.”

Depoliticization is achieved when government actors introduce new, non-political actors, for

example consultants, as authorities for particular policies, which seems to shift the place of authority. For example, governments can hire managers, consultants and other arms-length organizations in helping them to achieve policy goals. In this way, governments try to avert competence crises and shift responsibility from political actors, such as the party in office, to non-political bodies (Burnham 2001). Depoliticization entails shifting the authority in policy making from these bodies to others seen as possessing more expertise and less subject to shift on political demands. These experts, managers and consultants brought into the policy-making process are presented by governments as rational planners, cost cutters, and partners in governance, therefore making their involvement in government a rational and desirable thing

(Beveridge 2012). The goal of employing these new actors and bodies is, for government, to be able to be shielded from the consequences of unpopular policy decisions, or as Flinders and

Buller note, “to establish some sort of buffer zone between politicians and certain policy fields.”

This kind of depoliticization can be problematic if responsibility is being shifted to non-political experts who are not democratically accountable as politicized actors (political parties and legislatures) would be. In this sense, practices to depoliticization “can destabilize and undermine the traditional rules and institutional practices of representative democracies”

(Beveridge 2012). New actors operate in new political spaces which are not subject to the rules of representative democracies, hence they are creating new rules and norms for policy-making.

A second way of defining depoliticization has less to do with political actors delegating authority to non-political counterparts, but more with non-state actors looking for ways to gain, or maintain their previously established, control over the policy-making process. Policy experts and policy elites seek to create “depoliticized subgovernments” (Baumgartner and Jones 1991).

A subgovernment is “an autonomous subsystem of closed, informal cooperation arrangements amongst elite lobbyist, high-rank state officials, and members of parliament, hence a closed shop sealed off from the public and rather indulging in back-room politics” (Gründinger 2017).

Experts within a subsystem will try to control the venue as a way to maintain control over what other actors (potentially having contrary interests) are allowed to become part of the policy- making process. In other words, those who have the capacity to control the venue also exert significant control over policy decisions. But in order to control the venue, experts will want to first control the image of a policy. According to Baumgartner and Jones, policy experts or specialists have an incentive to manipulate the image of a policy, i.e. the beliefs and values associated with a policy, because “images have implications for which actors in a society will be attracted to a given debate” (1991, 1047). So, an image can attract a small number of actors versed in the technical complexities of an issue, or it can attract a broader public if an issue is presented as a social question. Policy image and venue reinforce each other, meaning in some venues some images are more easily accepted. The choice of policy venue can limit access by certain interests, particularly of those actors who although may have an interest in the topic, may not have the technical background to discuss it. For example, some venues make it hard for new actors to become involved because they require specialized or arcane language or can have

“complicated rules of formal agenda access” (1991, 1071), increasing entrance barriers for those who are not fluid in these languages and rules, or for those who cannot hire specialists on their behalf.

These previous two ways to define depoliticization focus on the actors involved, one highlighting that sometimes politicians transfer authority to a group of non-political experts,

while the other highlights how a community of experts is at times the one which initiates the process with the ultimate goal of creating a depoliticized sub-system. This study argues that depoliticization of a policy issue can also be understood in a third way, not so much focusing on the actors involved (whether they delegate or transfer authority), but through the target group of policies. Actors can depoliticize an issue when policies put forward are presented as universalistic, rather than as pertaining to a particular group in society. In other words, policies presented as providing benefits to society as a whole can be less contentious and be more accepted than policies presented as beneficial to one societal group only, even more so if the target group is considered undeserving of state protections and benefits.

In the case of immigration policy this is particularly important as immigrants, especially those without documented status, can easily be presented as undeserving of state resources, or at the very least can be thought by some to be a group less deserving than nationals are. As the following chapters will show, actors working on immigration policy in Chile resort to images that present pro-immigrant policies as universalistic. While some of the policies adopted can only benefit immigrants (for example a policy that provides resident visas for pregnant women), policy actors are mindful that policies which appear to favour immigrants too much could create tensions with other groups in society. In fact, these tensions are usually part of the policy-making process, as will be discussed, but actors seem to prefer universalistic policies.

They achieve this by using different frames that signal how the point of policy is not to “take away from Chileans to give to non-citizens,” but to improve Chilean society as a whole. This emphasis on presenting an issue as universalistic rather than for the benefit of only one group stands in contrast to interest-based explanations of immigration policy earlier discussed. The

policy area becomes depoliticized precisely because the beneficiaries of policies are not seen as winning at the expense of other groups or more deserving interests, which avoids presenting the issue as confrontational between groups in society. A second way in which immigration policies have been depoliticized is through the use of policy instruments directed to the group of specialized state actors who work on immigration policy. As will be discussed in Chapter 3, while available to the public, these instruments, particularly presidential directives, are instructions on the general disposition of a given policy, in this case immigration, meant to be

“consumed” by specialized state actors. The presidential directives on immigration policy are instruments of depoliticization because they are low-ranking, that is, not on a par with bills or legislation. Their rank seemingly denotes that government assigns a lower priority to the contents of the directives than it would assign to the contents of a bill for example.

In sum, actors in Chile have been able to advance immigration policy and move past “the same old institutions,” by first, taking advantage of the ambiguity of rules which do not prohibit their involvement in this policy area, and second, by presenting immigration policy as a depoliticized, universalistic issue. The depoliticization of immigration policy follows a general trend adopted by post-authoritarian governments to depoliticize social policy, as discussed in section 1.3.2. Given the inefficiency of existing institutions in charge of immigration policy, other actors and institutions have been recruited to work on this area do so even though they do not have formal authority over the matter. Their recruitment and participation then creates a parallel set of institutions to DL 1094, which allows actors to advance policy without completely getting rid of the existing legislative framework. Furthermore, the gap between the old institutions and the opening of new institutional venues participating in immigration policy

creates spaces for new actors to experiment with policy innovation. Actors innovate by presenting policies in a depoliticized way; they put forward policies as being for the benefit of society as a whole and which avoid taking resources away from Chileans to give to

“undeserving” newcomers.

1.6 Contributions

In addition to shedding light on the question raised by the central puzzle, namely, how have actors created progressive immigration policies while being constrained by the existing institutions, this study also makes other contributions to comparative studies in general.

First, this study seeks to expand our knowledge into the immigration policies of present-day immigration receiving countries. Studies of immigration policy have tended to focus on the kinds of societies Freeman (1995) refers to when he discusses countries with highly institutionalized immigration policies. Normally, works on this topic focus on the policies of present-day settler societies or advanced liberal capitalist states, but seldom outside of North

America and Europe (for example Bloemraad 2006; Borjas 1999; Freeman 1994; Ireland 1994;

Joppke 1999; Joppke and Morawska 2003; Joppke and Seidle 2012; Lahav 2004; Penninx, Kraal,

Mariniello, and Vertovec 2004; Stoffman 2008; Triadafiloupolous 2012; Yurdakul 2016).

However, Chile does not seem to have followed the traditional path of immigration receiving states, which have been more or less open to immigration since the period of nation-building or became magnets of immigration thanks to their economic development and the need for cheap, low-skilled labour. The present study is interesting not only because immigration policy in

Chile is not highly institutionalized, but because unlike other settler societies or liberal capitalist

states, its immigration policy was not crystalized a long time ago, but in fact, underwent a complete dismantling during the period of authoritarianism. Chile’s experience with the new immigration only began in the 1990s after the return to democracy. This study discusses how actors exploit the available institutions to create immigration policy in a country that has received relatively lesser attention than those mentioned, yet it is a liberal capitalist state, with strong democratic institutions based on the rule of law, with a history of settler colonialism, and which in recent years has become a destination for immigrants attracted by the prospects of employment in a stable economy.

In addition to providing answers to these questions, this thesis also will provide insight into how immigration policy is decided in a developed, liberal capitalist state, but one which has received less attention than other traditional immigration receiving countries. Chile has begun to display similar demographic trends to other OECD countries. Whereas in 1992, the population over 65 years of age represented 6 percent of the population, by 2017 they represented 11.4 percent; at the same time, the population under 15 years of age is decreasing, from 29.4 percent down to 20.1 percent in the same period (INE 2017a). Similarly, fertility rates continue to decrease, 1.8 in 2015, which according to authorities, is below the 2.1 required for generational replacement (INE 2017b). For South American, and especially Chilean, scholars, the transformation of their country into an immigrant destination has not gone unnoticed, and this phenomenon has spurred important and insightful studies (for example Lube Guizardi

2018; Lube Guizardi and Garces 2014; Matus, Cortez-Monroy, Sabatini, Hermansen and Silva

2013; Fuentes, Lagos, Lawson, and Rodríguez 2016; Silva 2006; Stang 2016; Stefoni 2002b, 2004,

2011a; Olea 2003; Pedemonte and Silva 2016; Thayer and Duran 2015, among others). However,

these important works produced by South American scholars are more situated in fields such as anthropology, law, public policy, and sociology. Hence, my study contributes by bringing in political science and providing an account of institutional change.

This study also contributes to our understanding of how immigration policy is made in a decentralized manner. Due to the absence of policies from central government, as mentioned before, non-traditional actors have become involved in the making of immigration policy.

Decentralization of immigration policy normally has been studied in the context of federal systems, where certain aspects of immigration policy are handled by the central government and others are devolved to subnational units within the context of federalism (Boushey and

Luedtke 2006; Hepburn and Zapata-Barrero 2014). The specific participation of local governments taking a more direct role on the admission and integration of immigrants, or on measures that prevent those goals has also been studied as instances of decentralization

(Andrew and Hima 2011; Bushey and Luedtkey 2011; Dobrowolsky 2013; Jørgensen 2012;

Paquet 2014; Tossutti 2012; Sabater 2012). Others have emphasized how demographic changes and national narratives shape local debates on immigration and lead local authorities to create immigration legislation (Vicino 2012). The case of Chile is interesting as it adds to this literature however it is not a federal state. A unitary state with a strong history of presidentialism, this case provides insight as to how actors can find opportunities to enter the policy-making process in scenarios where there are not many “break-in” points that federalism provides. This feature of the Chilean state, unitarianism, has been used by scholars to explain the success or failure of policy decentralization, for example reproductive rights (Franceschet and Piscopo 2012) and

fiscal policy (Scarpaci and Irarrazaval 1994). While a case study, this study can advance how policies can be decentralized in unitary states and what the mechanisms at play are.

Lastly, this study contributes to the works which advance political science by studying Chile as either a case on its own or in comparison. Chile has largely been the object of study given the salience of being under authoritarian rule for 17 years and having returned to democratic rule in a peaceful manner. There have been important works on the nature of authoritarian regimes

(Barros 2002; Huneeus and Sagaris 2007; Policzer 2009). Other studies have highlighted how

Chile’s transition to democratic rule was not without issues and remained incomplete after a peaceful transfer of power from the military to civilians (Angell 2007; Barton and Tedesco 2004;

Cavarozzi 1992; Garreron 2004; Linz and Stepan 1996; Siavelis 2000). The economic reforms undertaken by the military regime, which imposed a free-market economy and reduced the participation of the state in economic and social spheres have also been the subject of studies

(Heicht-Oppenheim 1993; Collins and Lear 1995; Petras, Leiva, and Veltmeyer 1994). This study begins from a similar observation, that the policies adopted by the military regime in different areas had a profound and lasting impact on the way social and political processes take place, even more than 40 years later. As discussed in section I of this chapter, this study starts with the observation that the existing formal institutions that manage Chile’s immigration policy are still those which were created and put in motion by the military regime. In many fronts, Chilean governments after the return to democracy have adopted social and economic reforms aimed at reverting some of the legacies of the authoritarian regime. While it may seem that immigration policy is not one those legacies which have been reverted, this study will argue that is not

exactly the case, as authorities have created new, de facto institutions, but without dismantling

“the same old institutions.”

1.7 Methods and outline of chapters

Chile is an important case to study the development of immigration policy. As stated before, the country is now considered an immigration receiving country, with a 785 percent increase in its foreign-born population in the last 25 years, as it continues to attract economic immigrants as well as those displaced by political circumstances in the region, such as immigrants from Haiti and Venezuela. However, by all measures, Chile does not have a national immigration policy but at most, legislation created with the intent of policing foreigners in the country (as Chapter

2 will discuss). The current legislation makes no mention of immigrants’ social rights, let alone establishing the basis of a policy for dealing with foreigners (whether it be integration, assimilation, interculturalism, multiculturalism, or a different model). Hence, Chile presents a great case for exploring how pro-immigration policies arise in what would appear to be hostile ground for their appearance. As such, this study approaches the development of immigration policy in Chile after the dictatorship period as a case, that is, as “a phenomenon, or an event, chosen, conceptualized and analysed empirically as a manifestation of a broader class of phenomena or events” (Vennessonn 2008, 226). My analysis follows a “causes-of-effects approach” (Mahoney and Terrie 2008), that is, my goal is to provide a complete explanation of a specific outcome (advances in immigration policy) in a particular case (post-authoritarian

Chile).

Through the use of process tracing, that is, through “the use of evidence from within a case to make inferences about causal explanations of that case” (Bennett and Checkel 2015, 4), I make causal connections about the mechanisms that have led to the development of immigration policies where actors face significant constraints to such development. My approach is interpretivist in the sense employed by Ragin (2014, 3), which “attempts to account for specific historical outcomes or sets of comparable outcomes or processes chosen for study because of their significance for current institutional arrangements or for social life in general.” I also employ an interpretivist approach to process tracing as defined by Vennessonn (2008), meaning that uncovering the causal mechanisms requires an examination into actors’ perceptions and preferences and how these shape actors’ responses to their context. The result is a non-static narrative of the policy-making process, one that weaves together the different stimuli that actors at the core of the policy-making process respond to. Although my narrative does take into account the chronological unfolding of events, it is primarily guided by three analytical components which represent three distinct venues or contexts where the policy-making process takes place: the executive branch, municipal governments, and the legislative branch.

Qualitative primary data for this study was obtained through interviews conducted primarily during the months of July and August in 2015, in Santiago, Chile, and subsequent distance interviews in 2017. I made sure to include actors from the different arenas which are linked to immigration policy; these included actors in the executive branch of government

(social ministries and department of immigration), municipal offices, as well as experts and members of civil society organizations. Participants were recruited based on their work or involvement with immigration policy (either in government or civil society) or their expertise in

the topic. I located and recruited participants in the following ways. Some participants in government were known figures for their work on immigration policy, and so I reached out by email to their office and requested interviews. Others were not publicly known figures, and in those cases I contacted the relevant government office and requested interviews with the staff in charge or knowledgeable of their area’s policies on immigration. Members of civil society were recruited by reaching out to their organizations and requesting interviews with their relevant staff, or by reaching out directly to the relevant persons when their name was publicly known.

Experts were identified thanks to their published work on immigration policy and were recruited by reaching out to their institutional contact information. Prior to participant recruitment, this study received clearance from the University of Calgary Conjoint Faculties

Research Board (REB15-0516). There were 26 interviews conducted, for a total of 28 participants

(the list of anonymous interviewees can be found on Appendix A). Participants can be broadly classified as being experts (6 participants), former or current government staff (14 participants), or members of civil society organizations (8 participants). However, it should be noted this classification fails to capture the diverse interactions between these groups, as many of the participants had trajectories which included moving from one group to another, or instances where they could be classified as belonging to more than one group. For example, some participants had begun their careers in immigration policy as members of civil society but then were recruited by the government (either central or municipal), or experts were also at times working for or in close participation with organizations of civil society. The world of people interested in immigration policy in Chile is quite small, and being a highly centralized country,

actors in this policy arena know well others working on the same issue, be it in central government, municipal government, or from organizations of society.

Interviews consisted of semi-structured questions, which lasted about 45 minutes on average. Some questions were tailored to each category of participant. Other questions, however, were the same for all, to verify if participants working on this issue but in a different role had a different or similar perspective on the matter. In general, the questions probed into the participant’s background, how they became involved working on/researching immigration policy. Next, they were asked about the specific work they and their office/area/institution carry out on immigration and how this work is achieved in spite of institutional constraints. A third group of questions probed into how participants see relationships amongst policy actors, and how these relationships are used to advance their agendas. All interviews were conducted in

Spanish. All direct quote translations (as well as translations of other materials and sources in

Spanish) have been done by the author.

Additional primary data for this study comes mainly from government sources. Data on immigration to Chile employed in Chapter 2 comes from data provided by Chile’s Department of Immigration and Foreigners, which maintains detailed records on temporary and resident permanent visas issued. For Chapter 3, some data comes from policy documents, such as the instruments the central government uses to guide immigration policy, namely the different directives, programs of government, and the current legislation on immigration. For Chapter 4, much of the analysis comes from the Community Development Plans (Planes de Desarrollo

Comunitario, or PLADECOs), which are created by municipal governments, as well the websites of the various municipalities discussed. Electoral data for this chapter was obtained through

Chile’s electoral service, SERVEL. The majority of the data for Chapter 5 on nationality claims comes from the Supreme Court’s database, which was complemented with secondary data by studies carried out by Fuentes et al (2016) and Ribera Neumann (2002).

The chapters are organized as follows: Chapter 2 provides a historical overview immigration policy in Chile since the late 19th century, as well as an overview of existing legal and institutional frameworks governing immigration policy. The goal will be to show how immigration policy has been transformed through the intervention of actors that do not have formal authority in this policy area. Chapter 3 discusses policy creation in central government, arguing that new and old actors have been empowered to work on immigration policy. In spite of the institutional limitations, actors working on advancing immigration policy have resorted to low-ranking executive orders (presidential directives) in justifying both their participation and the specific policies advanced. Chapter 4 discusses how municipal governments in Chile have become involved in immigration policy. The chapter will argue that the absence of formal policies generated at the central level and directed towards other levels of government (in this case the municipal level), has created opportunities for the emergence of new actors and institutions involved in immigration policy as well new ways to conceptualize immigration.

Lacking the authority to directly apply or alter immigration legislation, municipalities subsume immigration policies under their mandates, however not always identifying it as immigration policy, but as social policy, or more precisely, as a subset of community development policies.

Chapter 5 deals with how organizations of civil society have advanced a more open immigration system by engaging in strategic litigation. They have done so by contesting the government’s interpretation of nationality laws. By arguing that authorities had incorrectly

defined immigrants without status as “transient” people, organizations of civil society persuaded the Supreme Court to adopt new criteria with regard to nationality laws. In doing so, the court bypassed both DL 1094 and the Constitution, which later resulted in government authorities adopting new policies on immigration but without altering DL 1094. Instead, through the adoption of low-rank administrative orders, state actors have resolved the problem of an outdated and workable legislative framework. The final concluding chapter will summarize the study, identify ongoing tensions and challenges, and outline avenues for future research.

2. Patterns of immigration and institutional change

As discussed in Chapter 1, immigration receiving countries are moving towards a pattern of selective and managed immigration, where only a select few are allowed to immigrate and settle permanently, while those who are not selected may still be able to immigrate however with few recourses and few rights. In addition, settler societies follow a more or less similar pattern when it comes to institutionalization and making of immigration policy. Chile is thus an interesting case to study for a number of reasons. First, as will be shown in this chapter, recently adopted policies on immigration have clearly expanded the rights of immigrants, such as the right to reside (especially important for those without documented status) and social rights (health, education, housing, and employment). Second, as a settler society, Chile’s immigration policy making apparatus is not strongly institutionalized. Since the return to democracy, there has been an institutional void in terms of the centre of policy creation and implementation, meaning that the formal authority in charge of this policy area, the Ministry of Interior through its Department of Immigration, had not until recently developed comprehensive policies and long-term goals for how immigration into the country should be permitted and managed. Instead, authorities limited themselves to enforcing DL

1094, for example by recording entries and exits, as well as processing applications for new visas, and enforcing deportation orders.

Given the above, we should expect a scenario where the status quo would prevail, where the laws and institutions created during the dictatorship, meant precisely to prevent the arrival and settlement of foreigners into the country, would continue to operate undisputed.

However, as this chapter will describe, the status quo created with the arrival of the military dictatorship has undergone various reforms that can only be described as pro-immigration.

What have these changes looked like? Do new immigration policies differ from policies adopted earlier, also meant to promote the migration of certain groups of people to Chile? And what are the institutions involved in producing changes to the status quo? In order to answer these questions, this chapter first provides a historical overview of how immigration policy in Chile has been organized since the late 19th century, and its corresponding results in terms of shaping immigration flows into the country. Next, this chapter will provide an overview of the legal and institutional frameworks governing immigration policy currently in Chile. In doing so, I will show how the status quo has been altered through the intervention of actors working in venues without a specific mandate in the governing of immigration (as per the legal framework), yet they have created some of the most immigrant friendly policies in recent years.

2.1 Chilean immigration policy: historical overview

Chilean immigration policy since the time of the country’s independence (formally declared in 1818) has been ordered by the principle of attracting “desirable” immigrants and preventing the immigration of those considered “undesirable” (Stefoni 2011a). However, the meaning of “undesirable” has changed over time, with two major definitions used by government at different times (Stefoni 2011a). The first definition, in use from the 1820’s, after the country’s independence from Spain, until the 1970s approximately, was based on the idea that certain kinds of immigrants were more desirable for their nation-building role. In this initial stage, the government was intent on recruiting people from abroad to populate and bring

under its rule the vast areas of land inhabited by the indigenous groups such as the Mapuche in the Araucania region, as well as to provide the necessary capital and skilled labour for Chilean industries (Norambuena 1990; Estrada Turra 2013). During the 19th century, the government’s preference was to recruit European immigrants, based on the notion that Europeans were a superior race that by mixing with the local population, would improve the Chilean racial stock.

Europeans were believed to have a superior cultural and moral standing to natives of the

Americas, therefore, their mixing with the local population was a way to progress as a nation

(Estrada Turra 2013).

Initially, North Americans and Europeans were attracted to Chile due to its liberal economic policies and the growth of port cities such as Valparaíso (Norambuena 1990). By 1824, the government created the first legislation concerning immigration, which offered incentives to foreigners who settled in Chile and took over agriculture as their primary activity; for example, they would be exempted from paying taxes during a ten-year period, and the government would also supply them with land. These early efforts to attract immigrants were not very successful, and thus, in 1845 the first Law of Colonization was passed, giving even greater benefits to colonists. Colonists would be provided with the land needed to undertake economic activities, in addition to tools, seeds, and other items required to live off the land during their first year. In addition, they would be exempt from paying taxes for 20 years after the establishment of the colony, and their transportation costs were to be covered by the state

(Norambuena 1990). By 1883, a recruitment office was established in Spain, and soon afterwards offices opened in France, Germany, Italy and Switzerland. Between 1883 and 1890,

6,940 European colonists were brought over to Chile, including Swiss, Spaniards, French,

Italians, English, and Russians (Norambuena 1990). Thanks to these recruitment programs, by

1890, 12 colonies had been established in the Araucania region, with a population of 5,054 individuals. However, by the end of the 19th century, such policies entered into a domestic crisis; public opinion argued that the government was prioritizing and spending public resources on the settlement of Europeans, while at the same time, Chilean nationals had to migrate to Argentina in search of land. The government ordered recruitment offices in Europe to halt activities and changed its approach from recruiting agriculturalists to recruiting small entrepreneurs, skilled technicians and skilled labourers, which it presumed would find less opposition among public opinion (Norambuena 1990).

By the beginning of the 20th century, foreigners had settled primarily in the provinces of

Santiago, Valparaíso, Concepción, and Valdivia. The economic importance of foreigners can be seen in the fact that by 1917, 56.8 percent of the country’s industries were located in those same provinces (Norambuena 1990). Immigration continued to increase throughout the end of the

19th and first half of the 20th centuries (Table 2.1). However, increases cannot be solely attributed to the government’s selective immigration policies. In fact, it was spontaneous migration which accounted for the majority of Chile’s foreign-born population during this stage (Norambuena

1990; Stefoni 2011b). The 1895 census revealed that the majority of those foreign born had not been sponsored by the government with the goal of colonizing previously uninhabited land.

Spontaneous migration was primarily encouraged by the niter industry in northern Chile. The government did make efforts to control the spontaneous or undesirable migration of non-

Europeans (Stefoni 2011b). For example, in 1940, a bill was introduced to congress that would have established two categories of foreigners, free immigrants and colonists. Although the bill

did not pass, it contemplated racial, health, cultural and moral criteria for the first group, whereas for the second group, it did not establish such criteria, but clarified what kinds of benefits colonists would receive, such land, among others (Cano, Soffia, Martinez 2009).

In 1953 the Ministry of Finance established the Department of Immigration. The goal was to create a body independent from the Ministry of Foreign Affairs that was dedicated to advancing immigration policy. Following the example of other settler countries such as

Australia, Canada, South Africa, Argentina, Venezuela, among others, the department was tasked with attracting immigrants in order to fill gaps in certain industries and with people of specific profiles, by giving them incentives and providing assistance to immigrate. In addition to these goals, the act also intended to attract immigrants of certain origins, noting that,

“Immigration with selective elements shall contribute to improve the biological conditions of the race; The contribution of the selected groups of immigrants shall take place at the earliest, taking advantage of the interest by European governments to find placements for the population surpluses outside of the Continent” (DFL 69 of 1953).

Table 2.1: Migration to Chile 1854-1940 Census Total Percentage Total Population Foreign Born Foreign Born 1854 1,439,120 1.4 19,569 1865 1,819,223 1.2 21,982 1875 2,075,971 1.2 25,181 1885 2,527,320 3.4 87,077 1895 2,712,145 2.9 79,056 1907 3,249,279 4.1 134,524 1920 3,753,799 3.2 120,436 1930 4,287,445 2.5 105,463 1940 5,023,539 2.1 107,273 Source: Mezzano 1995.

In spite of these efforts, by the mid 20th century, the government abandoned its efforts to control spontaneous migration (such as that of foreigners attracted to Chile by mining activities, other commercial activities, or by family ties), although the desirability criteria were not completely abandoned, such as technical qualifications and national origins, primarily

European (Cano et al 2009). From this period on, and until 1973, governments tried promoting both, spontaneous and recruited migration. For example, in 1959 the category of “tourist” was suspended and foreigners from any nationality could enter the country without justification. At the same time, efforts to recruit Europeans continued, for example, an agreement was signed with Spain to recruit more immigrants, and in 1961, 300 Germans arrived in the city of Parral

(Mezzano 1995). During the first half of the 20th century, wars in Europe and the reconstruction period afterwards had put a halt to migration to the Americas. Thus, by 1970, the foreign-born population in Chile reached just 1 percent of the total population (Stefoni 2011b).

Shortly after the government of Salvador Allende was ousted by a military coup in 1973, the military government headed by Augusto Pinochet employed immigration policy as a tool to protect the nation from what it considered to be undesirable immigrants. The military regime saw countries with communist governments with suspicion, and the relationships with these were characterized by mistrust (Cano, Soffia, and Martinez 2009). It is in this context that in

1975 a highly restrictive regulation for the entrance and control of foreigners into Chile was created, the Decreto Ley 1094 (DL 1094), or Law Decree 1094, commonly known as Ley de

Extranjería, or Law of Foreigners1. In addition, it was the Ministry of Interior, and not Foreign

1 DL 1094 is not an immigration law per se, as the word Extranjería refers to the rules and conditions surrounding foreigners from a given country.

Affairs, tasked with administering DL 1094. Furthermore, with the passing of this new law, we see a change in the definition of undesirable immigrant. Whereas in the first period the concern was to encourage the migration of foreigners based on criteria such as ethnicity and culture

(and in so doing to manage the less desirable flows), after 1975 the goal changes to policing and controlling those considered undesirable foreigners. DL 1094 established that entry into the country would be denied first and foremost to those foreigners capable of spreading doctrines that through violence upset the social order or the country’s system of government. The decree gave the president powers, by way of supreme decree, to prohibit the entry of certain foreigners for reasons of interest or national security. This meant that any non-Chilean who expressed views against the military dictatorship could be perceived as trying to upset the system of government and thus, could be considered an undesirable foreigner. In addition, DL 1094 also saw unionized foreigners and activists as individuals trying to promote anti-government agendas, and thus, violence against the established order. Foreigners were considered potential carriers of subversive ideas, and the government had to protect national security and social order from such threats.

There was also an important institutional break from policy making and management compared to earlier periods. Before DL 1094 became effective, the Ministry of Foreign Affairs had a much more important role in directing and implementing policy. According to Mezzano

(1995), Foreign Affairs acted as the institution in charge of carrying out immigration policy, coordinating other government agencies involved in immigration, as well as acting as the first point of contact for immigrants abroad who wanted to establish themselves in Chile. However, in a sharp departure from this tradition, after 1975, all aspects concerning the entry, residence,

permanence, exit, re-entry, expulsion and control of all foreigners were to be governed by DL

1094 (Ministry of Interior 2011). DL 1094 also established that Interior would now be in charge of issuing visas to foreigners in Chile, while Foreign Affairs would only be in charge of issuing visas to individuals from within their countries of origin. All other aspects concerning immigration policy would now be the responsibility of Interior, such as establishing immigration and foreigner policies, ensuring law compliance and propose modifications, enabling sanctioned points of entry and exit, among others. The idea was that in regard to immigration, Foreign Affairs would take its lead from Interior authorities. In order to ensure

Interior would fulfill its responsibilities, DL 1094 created the Department of Foreigners and

Migration (Departamento de Extranjería y Migración, DEM), responsible for the execution of the decrees, resolutions, orders, and instructions put forward by Interior with regards to the provisions established in DL 1094. The decree also established an important role in the process for the General Office of Investigations (Dirección General de Investigaciones or DGI), which was to control the entry and exit of foreigners into the country. These changes illustrate the fact that immigration policy in Chile became “securitized,” or a means to support the security goals of the military government.

Given the political climate the country experienced during the years of military dictatorship, Chile now underwent a reverse migration pattern. The political repression brought on by the 1973 military coup prompted Chileans to leave their country in numbers that had been unprecedented, as the military regime used forced exile as a tool to eradicate political opponents (Wright and Oñate 2007). Sympathizers and members of Popular Unity, Salvador

Allende’s party, left the country or sought political asylum (and eventually safe passage to

another country) at foreign embassies in Chile (Prognon 2006). Initially, Chileans left to neighboring countries such as Argentina or Peru, which often served as a temporary stop to leaving for farther places. In time, Chileans left to more distant and less traditional destinations where there was no tradition of Chilean emigration. Also, the fact that the military regime issued administrative expulsions exacerbated the forced emigration process. One way of achieving this goal, while at the same time appeasing some of the international pressure, was to allow political prisoners to commute their sentence to expulsion. Others left the country under pressure and repression and harassment. Also, as Wright and Oñate (2007) point out, others were forced out by economic pressures; as the regime blacklisted political opponents, many were no longer able to find work teaching, in the bureaucracy, or in the private sector. Because the majority of those who left did so “through normal channels, on scheduled flights with papers in order,” the regime took advantage to portray exile as voluntary, casting asylees as well-to-do people that could afford comfortable and even luxurious life styles outside of their country. As Prognon points out (2006, 64), exile was beneficial to the military regime for two reasons. First, it allowed the regime to eliminate dissent against its governing project, and second, it removed some of the excess labour that the liberal economic model adopted by the regime (Chapter 1) was unable to absorb.

It is difficult to estimate the number of Chileans that left the country under the dictatorship (Table 2.2). Part of the reason has to do with the fact that receiving countries did not necessarily carry out their census at the same time, so a picture in time of how many

Chileans were abroad in a given year is hard to ascertain (Pozo 2006). Moreover, in receiving countries, it was not uncommon for those in exile to have an unclear status (Prognon 2006, 69);

not everyone who was in exile received the status of political refugee. For example, not all asylees would have been able to bring documentation with them due to the conditions of their leaving; others were able to leave only after surrendering their passports to the military authorities, who in this way expected to keep control over who was allowed to return. Still, there were others who although were able to leave the country without having to surrender their identity documents, feared that by taking the status of refugee they could lose Chilean nationality2, or more likely, feared that their freedoms could be curtailed by the authorities in the country which had given them refuge.

Table 2.2: Emigration of Chileans in 1970 and 1980 Destination Percent country 1970 1980 Increase Argentina 142150 207176 45.74 Bolivia N/A 7508 Brazil 1900 17830 838.42 Ecuador N/A 5747 Mexico 845 3345 295.86 Peru 7525 5976 -20.58 Venezuela 2999 24703 723.71 Canada N/A 15255 United States 15393 35127 128.20 Spain 767 3487 354.63 France 1218 6014 393.76 Sweden 181 8256 4461.33 Source: Pozo 2006.

The trend only began to reverse once the country returned to democratic government in the 1990s. Domestic factors such as political stability and sustained economic growth make

Chile a magnet for regional migrants over other countries in the region. Regional and extra-

2 As Prognon (2006, 69) points out, this was a common misconception, as obtaining a different citizenship is a different process than acquiring the status of political refugee.

regional factors also make Chile an attractive destiny, such as more strict and selective immigration policies recently adopted in European and North American countries, as well as economic and political instability in some countries in Latin America and the Caribbean. The trend of decreasing flows observed since the mid-20th century, later exacerbated by policies of the military dictatorship, finally began to give way. Whereas in 1982 immigration rate reached its lowest, with a mere 0.7 percent of the country’s population being foreign born (Stefoni

2011b), preliminary results of the 2017 census reveal that Chile’s foreign-born population has reached 4.25 percent, or a 785 percent increase in 25 years (Figure 2.1).

Figure 2.1: Percentage of Foreign-born population in Chile, 1982-2017 800000 4.25% 700000

600000

500000 2.80% 400000

BORN BORN POPULATION 2.04% - 300000

200000

FOREIGN 1.22% 0.86% 100000 0.74% 0 1982 1992 2002 2012 2015 2017

Sources: DEM (2016a), INE (2018), CASEN (2016)

Some government estimates indicate there may be as much as one million foreign-born people residing in Chile (La Tercera, 2018). Chile is nowadays one of the fastest growing destinations for migrants in South America and was actually the South American country where immigration grew the fastest for the 2000-2017 period (Table 2.3).

Table 2.3: Migration Growth in South American Countries, 2000-2017 Migrants as Growth Annual percentage of Rate Growth population Rate 2000 2017 Chile 1.2 2.7 125 7.4 Ecuador 1.2 2.4 100 5.9 Bolivia 1.1 1.3 18.2 1.1 Argentina 4.2 4.9 16.7 1 Venezuela 4.1 4.5 9.8 0.6 Colombia 0.3 0.3 0 0 Peru 0.3 0.3 0 0 Uruguay 2.7 2.3 -14.8 -0.9 Paraguay 3.3 2.4 -27.3 -1.6 Source: UN (2017).

This renewed interest in Chile as a destination country has been, however, qualitatively different from the previously mentioned stages. While the first period is characterized by encouraging selective immigration (motivated by racial considerations), and the second period by isolationism and the protection of the national security ideology (through the expulsion of those considered to be a threat), in the third stage the government seeks to position Chile as “a welcoming country” (un país de acogida). This is illustrated by the concerns of the Concertación government of then president Michelle Bachelet, who in 2008 issued Presidential Directive 9

(Instructivo Presidencial 9), a policy guiding document which recognizes Chile as an important destination country, seeking to depart from its past discriminatory policies. Thus, according to the directive Chile shall define itself as “a country adequately open to immigration, seeking the non-discriminatory reception of migrants who decide to settle in the country, in agreement with international conventions and treaties subscribed by Chile” (Presidenta de la República 2008).

As will be discussed later in more depth, there is a strong preoccupation for those in the state in charge of immigration policy to ensure that policies adopted are in agreement with

international conventions; Chile has signed 13 instruments regarding migration to date, albeit only 10 have been ratified (Vicuña and Rojas 2015). Moreover, there is a strong preoccupation by government officials in different levels of government with reforming the outdated legislation and institutions regarding immigration in the country, which are still the ones inherited by DL 1094.

Migration to Chile after the return to democracy has different characteristics than previous waves during the 19th and 20th centuries (Stefoni 2011b). To begin with, the new migration is primarily concentrated in the capital’s metropolitan region. In 2010, 64.8 percent of the foreign-born population lived in the metropolitan region, and an additional 6.14 percent lived in Valparaíso, near the metropolitan region, followed by 14 percent in Chile’s three northernmost administrative regions. A second characteristic of the new migration is the diversification of countries of origin. While in 2005, 6.7 of every 10 migrants were born in another South American country, their share increased to 7.4 by 2014 (DEM 2016a). At the same time, flows from Europe and North America have declined to 11.8 and 4.8 percent in 2014, down from 17.1 and 6.6 percent in 2005. More specifically, the composition of intra-regional migration has changed as well, as traditional sending countries have begun to be replaced by new and more distant origins (Figure 2.2).

While in 1992 Argentina was the largest sending country, by 2014 Peruvians represented the largest group, with a growth of 373 percent in 22 years. Bolivia continues to be an important sending country, maintaining similar levels since the first democratic census. While Colombia was not identified as a significant sending country in 1992, by 2014 it had surpassed Spain.

More recent data indicates sending countries are diversifying even more. In the last five years

traditional sending countries such as Argentina, Bolivia and Peru are being replaced by migrants of new origins. New migrations, such as Haitians and Venezuelans, are rapidly gaining territory, as can be seen from the distribution of residence visas issued in 2013 and 2017

(Figure 2.3).

Figure 2.2: Largest Foreign-born Groups in Chile, 1992-2014* 35 31.7 30

born 30 - 25.8 25 20 20 16.3 15 population 10 8.8 8.6 6.7 6.7 6 6.1 5 4.7 4.9 3.5 5 2.2 2

Percentage of the total foreign 0 0 Peru Argentina Bolivia Colombia Ecuador Spain

1992 2002 2014

*As percentage of total foreign-born population. Sources: Cano, Contrucci, and Pizarro (2009), DEM (2016a).

Figure 2.3: Top Five Countries with Visas Issued in 2013 and 2017

2013 2017 35 35 29.7 30 30 27.4 25 21.59 25 20.34 20.15 20 20 17.3 15.4 14.8 14.5 15 15 10.6 10 10 4.5 3.72 5 5 0 0 Percentage of total visas issued Percentage of total visas issued Peru Bolivia Colombia Argentina Spain Others Venezuela Haiti Peru Colombia Bolivia Others

Source: DEM (2016a, 2017)

In addition to regional concentration and diversification of sending countries, immigration to Chile has also undergone a process of feminization (Figure 2.4), although the gap between the genders has slightly closed as per the last census. The feminization of migration to Chile is rooted in various factors, but the participation of Chilean women in the labour market is one of its main drivers. According to the World Bank, female employment in

Chile is still low, sitting at 49 percent during 2010-2014.3 However, the percentage increases once we take into account educational attainment: 76% of women with a university degree are employed outside the home (Gobierno de Chile 2009b). Even though Chilean men participate more in household activities and family care when compared to previous generations, women still carry the brunt of housework and carework (UNDP 2010). Women are still responsible for the majority of the cleaning and the cooking, while men tend to be involved in traditionally male chores (such as repairs, paying bills, and recreational activities with children). Thus, 34% of employed women report doing household chores without any help from other family members (UNDP 2010, 75). As families abandon the traditional male breadwinner model, immigrant women from neighboring countries have become an important source for providing carework to Chilean households. This pattern was first observed during the early migration of

Peruvians in the 1990s, but has continued since. Domestic and carework are an important industry for immigrant women, providing job opportunities for them.

3 World Bank data http://data.worldbank.org/indicator/SL.TLF.CACT.FE.ZS.

Figure 2.4: Percentage of immigrants by gender, 2005-2017 60 52.6 51.6 52.2 50.6 48.4 49.4 50 47.8 47.4

0 2005 2010 2014 2017

Female Male

Sources: DEM (2015), INE (2018).

Lastly, immigration to Chile can also be characterized as labour migration. As mentioned above, it is no coincidence that the new migration is concentrated in the Chilean metropolitan region, which includes the capital city, where immigrants can find greater and better remunerated economic opportunities. Moreover, demographic characteristics of immigrants in Chile clearly point to the fact that they are well integrated into the labour market

(CASEN 2016). Immigrants are more likely to be of working age than their national counterparts, with 67.3 percent between the ages of 15-44, compared to 42.2 percent for

Chileans. Data also reveals that immigrants show greater employability compared to natives; while 76.7 percent of immigrants aged 15 years or more are actively employed, only 57.7 percent of nationals in the same age group are. Lastly, immigrants have also on average achieved more years of formal education (12.6 years) than natives (11 years). The percentage of

Chileans 19 years of more without formal education is 2.5, compared to 0.8 for immigrants. 17.8 percent of Chileans have completed a university degree, compared to 27.2 of immigrants.

In contrast to the ways in which previous regimes have defined who is a “desirable” immigrant, regimes after the return to democracy define desirability in terms of two dimensions. First, desirability is very much connected to the economic potential that individuals can provide to the country, not necessarily in terms of the wealth they bring with them. For example, Presidential Directive 9 makes reference to the fact that new migration is primarily moved by an “employment goal, and becomes integrated into the workforce as part of construction, industry, domestic services, and whose origin and social and work customs are urban in essence” (Presidenta de la República 2008, 1-2). Unlike the previous two definitions of desirability, the first one based on the nation-building potential of immigrants, and the second on their securitization, we see now recognition that immigrants have become an integral part of certain economic areas, which justifies their presence in the country. The second dimension is related to the capacity that immigrants have to become integrated to Chilean economic and social life; this does not mean that immigrants are screened for possible characteristics that will facilitate their integration, but rather, the view is that immigrants are a priori capable of becoming integrated, regardless of their social and cultural background. The fact that immigrants could bring with them ideas and values which might differ from those held by

Chileans does not pose an obstacle to their desirability, so long as the state assumes an active role in eliminating obstacles to their integration into Chilean socio-economic life. For example,

Presidential Directive 9 states that the state shall promote migrants’ “positive acceptance within society, while respecting their cultural specificity, but also promoting that foreigners become

integrated into various spheres, such as respect for democratic institutionality, for the language and cultural models of the receiving country” (Presidenta de la República 2008, 2).

The idea that immigrants are desirable despite social and cultural differences with

Chilean society is not only promoted by government, but is also espoused by members of civil society with an interest in immigration policy. As will be discussed in subsequent chapters, interviews with participants belonging to civil society organizations often revealed their skepticism that immigrants could pose some sort of threat to Chilean values. The prevailing idea is that immigrants are people who for the most part, leave their countries of origin out of necessity, meaning that if they could find economic opportunities in their countries of origin they would not immigrate at great financial and emotional costs to them. Moreover, for members of these organizations, immigrants are industrious and hard-working individuals, intent on improving their economic conditions and that of their families, are hardly a menace to

Chilean values or costs to tax-payers, but rather, quite eager to participate in Chilean economic and social institutions. And lastly, under this view, where conflict with the domestic-born population could arise, immigrants are not the default cause, but rather, the state’s weak state institutions are at fault. When migrants find obstacles to their integration, for example in accessing housing, education, health, employment and facing discrimination in general, social problems could arise. But in so far as the state takes an active role in removing these barriers, immigrants are a valuable addition to Chilean society. The idea is that both groups can mutually benefit; immigrants obtain integration into Chilean institutions such as the labour market, as well as the benefits provided by political stability and society in general, while

Chileans obtain the economic benefits of immigrants’ labour, as well as from a more open, and tolerant society.

As discussed in this section, it is clear Chile has come a long way from the nationalist immigration policies pursued in the 19th and 20th centuries and the securitization of this policy area in the second half of the 20th century, and is currently at a stage where immigrants are once again considered a valuable addition to society, primarily in terms of their participation in the labour market. Authorities are now of the view that if the state is to harness the benefits that new waves of immigration can bring (and avoid their potential disadvantages), it is then necessary to have institutions that have a clear mandate, share the same vision regarding how to best take advantage of immigration, and work in coordination in order to achieve the desired goals. However, as will be discussed in the next section, the current institutionality of immigration policy works against these goals. Immigration policy-making is rather decentralized, and the institutions and actors involved have different goals and cooperate somewhat sporadically.

2.2 Immigration policy: legal and institutional organization

Currently, immigration policy in Chile is organized and implemented by a number of government institutions and agencies. DL 1094 specifically established formal authority on this policy area for some of these agencies, while others have advanced immigration policies without having explicit or formal authority as per legislation. As will be argued in subsequent chapters, many of the changes that have taken place in terms of expanded rights for immigrants in Chile have taken place precisely because government institutions have adapted and

expanded their formal capacities, or because other institutions, not formally in charge of immigration policy, have adopted new roles which have allowed them to create policy in the area of immigration. In other words, policy change has been possible for two reasons, first, because formal institutions with formal authority on immigration have expanded or altered their scope of formal responsibilities, and second, institutions not formally responsible for enacting immigration policy have made inroads in that area. The following sections will discuss in more detail the legal and institutional framework that regulates and implements immigration policy in Chile.

2.2.1 Legal and institutional framework

In addition to establishing the kinds of rights and responsibilities that non-citizens present in the country are subject to, the legal framework on immigration also establishes the roles and responsibilities for institutions managing immigration into the country and responsible for creating immigration policy. These various instruments composing the legal framework dealing with immigration on a national level can be classified in two groups. The first includes legislative policy-guiding instruments from which formal powers on immigration policy are derived: the constitution, DL 1094, and to a lesser extent, the Refugee and the Human

Trafficking Acts. The second group is composed of Presidential Directive 9 of 2008 and

Presidential Directive 5 of 2015. The directives are different from instruments in the first group in that they do not owe their existence to legislation nor is their creation necessitated by the legal framework. However, it is through these last instruments that the most relevant policy changes have been adopted.

Constitutional Framework:

Chile’s constitution does not specifically refer to immigrants. However, given its principle of universal application of rights, certain protections therein included, such as equality under the law, no discrimination, due process, among others, would be applicable to immigrants (Stefoni 2011b). In addition, two constitutional articles have direct relevance for immigrants. The first is Article 10 (which will be dealt with in more detail in Chapter 5), establishing the conditions for Chilean nationality. Nationality shall be granted to those born in

Chile (with the exception of children of foreigners who are diplomats and the children of foreigners in transit), those born abroad to a Chilean father or mother, naturalized foreigners, or those who have obtained special permission for nationalization. In addition, Article 14 states that non-citizens who have resided in Chile for at least a period of 5 years shall be eligible to vote in elections. Beyond these two articles, there are no further references to non-citizens in the constitution.

Decree Law 1094 of 1975 (DL 1094):

As previously explained, DL 1094, put in force by decree of former president Pinochet, represents the main legislative instrument relating to immigration currently in effect by the

Chilean state. DL 1094 is not technically an immigration law;4 its main objective is to control the entrance and exit of foreigners into the country. As such, DL 1094 lacks specific discussion of what immigration is supposed to mean for the country, for example, if it is to be encouraged or discouraged (and on the basis of what criteria), what are its potential benefits or challenges, if

4 DL 1094 is officially entitled “Establishing the norms regarding foreigners in Chile.”

immigrants are to be integrated into Chilean society or what other policies might be put in place to ensure peaceful coexistence of nationals and foreigners, or in general a justification of why

Chile should accept or discourage immigration. The only kind of justification or criteria given in this regard, as explained before, has to do with a securitization of immigration, that is, with the notion that immigration serves national security objectives, and as such, the entrance of individuals perceived to be a threat against the policies of the military regime should be denied or carefully controlled. Stefoni (2011a) calls this the “administrative and infringement character” of DL 1094, meaning that it was conceived as an instrument to administer entries into the country (and corresponding exits) as well as to administer infractions to those who were in breach of its norms. DL 1094 was subsequently regulated through Decree 597 of 1985

(Foreigners’ Regulation). Over the years, DL 1094 has been subject to some modifications, however these in no way could amount to its repealing. Rather, a few of its restrictions have been eased up, including for example Act 19.273 of 1993 (which eases some of the restrictions on the exit of foreigners), and Act 19.476 of 1996 (which establishes the recognition of the principle of no-refoulement). However, nothing currently contained in DL 1094 refers to the social rights and human rights of immigrants.

In order to achieve its objectives, DL 1094 establishes specific mandates for government authorities in charge of creating and enacting immigration policy. These are:

• Ministry of Interior: the powers given to Interior by DL 1094 are broad and without many

limits. As stated in Article 13,

“The attributions corresponding to the Ministry of Interior for the issuance of visas,

extension of visas, and permanent resident status, shall be pursued discretionally, giving

special weigh to the coexistence or utility that their issuance represents for the country and

to international reciprocity,” (Article 13, DL 1094, 1975).

In addition to proposing the country’s immigration and foreigners’ policy and overseeing compliance with legislation, Interior has specific functions, such as issuing and extending visas to foreigners who are in Chile, issuing permanent residence status (as well as revoking any of these), establishing entry and exit points, maintaining a registry of foreigners, preventing clandestine immigration/emigration, and applying administrative sanctions.

• Department of Foreigners and Immigration (DEM): established under the Ministry of Interior,

DEM is directly responsible for overseeing compliance with DL 1094 and its Regulations.

DEM is the executive arm which implements all the orders and instructions handed down

by Interior with regards to the administration of immigration.

• Ministry of Foreign Affairs: responsible for issuing visas to foreigners outside of Chile

• General Directorate of Investigations: responsible for controlling the entry and exit of

foreigners, ensuring compliance with DL 1094, as well as informing Interior of all

infractions.

• Minister of Labour: responsible for informing Interior of any infractions found in the hiring of

foreigners.

Other levels of government do not have significant participation in immigration policy as per DL 1094. Municipal governments are mentioned once, in regard to their responsibility to ensure that any foreigner requesting municipal services provide proof of legal residence in the country. The participation of regional governments is reduced to applying administrative sanctions (which may include deportation) in certain situations. Furthermore, as we can see,

DEM does not have much autonomy over establishing immigration policy and it is subject to the decisions made by higher-ranking officials from the Ministry of Interior. DEM was not really conceived as a policy-making entity, but rather, as an executor of policy.

Law 20.430 (Refugee Act of 2010):

It is important to indicate that DL 1094 does refer to the specific conditions under which a person shall be granted political asylee or refugee status, as well as their corresponding rights and responsibilities (Articles 34-40). However, DL 1094 does not establish a definition for the category of refugee, nor does it provide a specific procedure to grant such status (Badilla

Aceituno 2014). Law 20.430 is important as it separates these from the rest of the regulations pertaining foreigners, in other words, from DL 1094.

In addition to these instruments that provide the legal framework on immigration policy and grant powers to specific government agencies, in recent years policies have been adopted through lower-ranking instruments that aim to guide immigration policy in a different direction and fill in the omissions of DL 1094. These instruments are:

Presidential Directive 9 of 2008:

Signed in 2008 by then president Michelle Bachelet, is a policy guiding document whose main goal is to instruct bodies in different levels of government on how to conduct immigration policy. Even though Presidential Directive 9 does not carry the same weight a law does, its importance in recent years is quite evident. As it will be argued in Chapter 3, many of the changes that have taken place recently are based on the principles laid out by Presidential

Directive 9. Policy makers, as well as those with an interest in this policy area, are very much aware of the principles established by the directive and consider them not only a guideline, but

a standard to which policies should adhere. According to Chiarello (2013, 158), Bachelet’s first administration had as its objective to position Chile as a welcoming country; in this regard, three main objectives were established: first, the non-discriminatory reception of foreigners who wish to settle in Chile, second, the furthering of humanitarian reception for refugees, and third, the linking with Chileans living abroad. Presidential Directive 9 is mainly concerned with the first of these 3 objectives, although it makes some mention of the second one, but no mention of

Chileans living abroad.

The directive notes that the migratory flows to Chile have changed, and the country now faces a new type of migration, as discussed earlier in this chapter. Given the different context, according to the directive, the state should take on a regulative and guiding role in relation to immigration. In other words, there is the acceptance/belief that the Chilean state has previously had a passive role, administrating immigration, but not really guiding it or taking advantage of its full potential. Thus, the directive establishes 4 main principles which shall guide immigration policy:

1. A welcoming country: Chile shall be defined as a country open to immigration; being a welcoming country entails the non-discriminatory reception of immigrants wishing to settle in the country. 2. Integration of immigrants: it is important for the receiving society to accept foreigners in a positive light, maintaining their cultural backgrounds, but at the same time immigrants will be encouraged to integrate into their new society. 3. International treatment of immigration: the state is expected to promote the creation of bilateral and multilateral agreements for the administration of immigration, both having the interests of immigrants and of participating countries in mind. 4. Regulatory and administrative capacity: the state does not relinquish its role in guiding the access to the settlement of immigrants, as it is in the state’s interest to legislate on immigration, for reasons of protecting its population as well as to increase its level of well-being.

As explained by Pedemonte and Silva (2016, 8), even if it is such a low-ranking instrument, the importance of Directive 9 of 2008 cannot be overstated, as it is “the first official document since the return to democracy where Chile’s immigration policy is made explicit, instructing state bodies and services to protect compliance of its principles. Among these are for example access to health and education, access to justice on equal footing with Chileans, freedom of movement, freedom of conscience, respect for labour rights, and no discrimination.”

As will become clearer in subsequent chapters, Presidential Directive 9 has acquired a very important role in immigration policy making; both institutions with formal responsibility in this policy area, as well as those which do not have a role as per the legal framework, hold their performance up to the standards established by this guiding document. In addition, the directive is well known by the media and civil society, which frequently refer to it when evaluating institutional performance on immigration policy.

Presidential Directive 5 of 2015:

The updated version of its 2008 predecessor, the 2015 directive complements its predecessor in some areas. Once more, it puts Chile as a welcoming country at the forefront of the policy, defining not anymore as a country of destination only, but an origin and transit country as well. The second directive makes more emphasis on mainstreaming immigration policy across government agencies. To this end, it calls for the creation of a National

Immigration Service, as well as provides further specific instructions for the Immigration Policy

Council and its supportive body, the Immigration Policy Technical Council. In addition, the

2015 Directive increases the list of principles that immigration policy ought to follow, from 4 to

16.

2.2.2 The policies

Taking into account the principles and instructions established by Directive 9 of 2008, a number of policies have been adopted which aim to bring the social and human rights of immigrants to the forefront, considerations which are entirely absent from DL 1094 as earlier discussed. Prior to the creation of the first directive some ministries had already advanced policies in this area, while other policies can be more directly linked to the directive. How these policies came to be adopted will be explored in Chapter 3. The remainder of this chapter will provide an overview of these policies.

Health:

The first measures taken in favour of immigrants were taken in the area of health, even prior to the adoption of the 2008 directive. However, there are some basic entitlements that foreigners have regardless of their migratory condition, that is, irrespective of whether they hold a visa that allows them to be in the country or not (or the conditions attached to such visa)

(Agar 2010). Non-Chileans in general have the right to obtain emergency medical services at no- cost to them. In addition, they may be treated through private providers if they wish to pay for medical or hospital services up front.

In addition to these general entitlements, the Ministry of Health was among the first to take measures to cover immigrants. Initially these measures were aimed at two groups considered vulnerable or potentially vulnerable: pregnant women and children. Since 2003, an agreement between the Ministry of Health and the Ministry of Interior has allowed for a temporary resident visa for pregnant women. In order to obtain temporary residence status, the person must provide proof that she is attending regular medical checkups. One important

aspect of this visa is that it covers even women whose administrative status is irregular. This is important because the policy allows pregnant women whose administrative situation is irregular to have the opportunity to obtain regular status in the country and access healthcare services in the same way as Chilean women. According to data from DEM, in 2012 there were

1,030 pregnancy visas issued in 2012. In 2008 this policy was extended to cover children. The program allows persons under 18 years of age to receive government-funded health care attention, same as Chilean children, without prejudice of the immigration status of their parents. Once the parents can provide proof that the child has been seen by a physician, they can use this to request before DEM a temporary visa for the child. If the child is of school age, the visa can be directly requested at the educational establishment. Subsequently in 2015, the

Ministry amplified the programs and services available to immigrant pregnant women and children, in addition to making other programs and treatments available to all persons irrespective of their immigration status (such contraceptives, immunizations, and treatment of communicable diseases). The 2015 instruction also stated that public health providers could not charge for emergency services if a person (immigrant in this case) indicated his or her inability to cover the costs of treatment.

DEM has also adopted policies in the area of health. In 2007, it negotiated access to the

Chilean public health insurance system, the National Health Fund (Fondo Nacional de Salud, or

FONASA) for persons seeking political asylum but whose case was still being processed by authorities. In 2009, the Ministry of Health also entered into an agreement with FONASA authorities to extend coverage to immigrants who have a resident permit (either temporary or permanent) under process by immigration authorities (the policy only covers employed

immigrants, therefore the person must be in possession of a valid work visa). In both of these cases, processing times could take many months. The FONASA measures benefit immigrants who had no option but to obtain private health insurance, or who could not obtain one if they could not afford it.

Education

Since 1995, Chile’s Ministry of Education has had in place a regulation that all immigrant children are to be enrolled provisionally in school. However, there was much arbitrariness in the application, for example students could be enrolled but later schools would remove their enrollment, or simply children whose parents were not legally in the country would not be registered by the schools (Soffia et al 2009). In order to end this arbitrariness, in

2005 the ministry issued an directive (Oficio Ordinario No 07/1008 (1531) to all basic educational establishments, instructing them to comply with the norm that children of foreign parents are to be enrolled in school, and their enrollment could not be withdrawn, regardless of the administrative condition of their parents (Martinez Pizarro 2011), as many times authorities in educational institutions would accept enrolling children of foreign parents, but would later withdraw students on the basis that their parents were not able to provide proof of legal residence in the country.

Not only have authorities been preoccupied about the arbitrariness in the enrollment of foreigners’ children been a preoccupation for authorities, but educational establishments have also aimed to provide regular status to immigrant children. For example, in 2003, DEM adopted a policy by which it would issue temporary resident visa to all minors enrolled in an educational establishment (it should be pointed out the measure applies to school-enrolled

children and not to any other family member). This measure is important not only because children covered under it would have regular immigration status, but because with this status they can obtain educational subsidies and other benefits in equality of conditions to Chilean children. The measures adopted also cover early education. In 2007, the Ministry of Interior reached an agreement with Chile’s National Board of Kindergartens (Junta Nacional de Jardines de Infancia) or JUNJI, the autonomous entity in charge of delivering early education programs in the country. The agreement is meant to facilitate access to early education for the children of immigrant families or refugees regardless of the migratory status that children themselves have.

In addition, Interior agrees to provide residence permits for children enrolled in a JUNJI establishment whose migratory status is not regular.

Housing

Immigrants in Chile are particularly vulnerable to precarious living conditions for a number of reasons (Torres and Garcés 2013). First, for many of them, procuring housing in old, run-down downtown neighborhoods is the only option, as rent tends to be much lower in these dwellings. In addition, those who do not have regular status in the country are subject to discrimination and abuses by landlords who can increase rents as much as they like a completely deregulated rental market. Thus, in order to make ends meet, immigrants are forced to live in overcrowded conditions, sometimes with a group of families under one roof.

Sometimes landlords will divide up a property into smaller units and rent to different families, even if the property was not designed with this end and cannot safely accommodate all renters.

According to government data, in 2013, nearly 25 percent of those foreign-born lived in overcrowded housing, compared to 9 percent of nationals (CASEN 2013). Even for immigrants

who have regular status and even acquired permanent resident, the situation may not be all that different, due to discrimination and the difficulty in accessing housing subsidies. In 2011, during the government of the right-wing coalition headed by Sebastián Piñera, restrictions on housing subsidies were introduced. Immigrants with permanent resident status would have to wait five years after the change of status to be able to qualify for a housing subsidy. In 2015, the restriction was eliminated, making it possible for foreigners to qualify for housing subsidy programs immediately after having obtained permanent residency status. The subsidies available allow a family to either improve, rent, or buy a home. By 2017, 6,782 immigrants had obtained some kind of housing subsidy (Interior 2017).

Employment

Employment authorization of immigrants falls under the responsibility of Interior, through

DEM, as are all matters pertaining to immigrants as stipulated in DL 1094. In this regard, DEM implemented a new labour visa regime which can be considered one of the most profound changes in immigration policy given its ramifications. On March 2015, the government launched the program “Temporary Visa for Reasons of Employment.” Previously, as per DL

1094, foreigners could obtain a labour visa if they could provide proof of an employment contract valid for at least 2 years. In order to be acceptable, the contract would have to state the employer would pay for the worker’s transportation costs to their home county at the end of the employment period (also for the worker’s family members if that was the case). These rules had a number of implications. First, employment authorization and residence status were attached to the employer; an immigrant could not undertake other employments opportunities

(including self-employment). Given that residence status was contingent on maintaining the

employment relationship, if the relationship was severed or came to term, an immigrant no longer had the right to reside in the country (unless a change in status was requested within 30 days, which was usually not enough time to find another employer, obtain another employment contract and apply once again for a temporary resident visa.). Second, a permanent residence application could only be submitted once the foreigner could provide proof of continued employment for 2 years with the same employer. This requirement gave rise to workplace abuses (such as lower wages, unpaid overtime, etc.), as immigrants would not denounce for fear of being fired and having to reset the clock. These rules created by DL 1094 left many immigrants without the possibility of applying for permanent residence status, even after living in the country for many years and being legally employed, if they could not accumulate the required 2-year employment period with the same employer. Additionally, many employers who did not want to commit to paying transportation costs would not sign a contract, and without it, DEM authorities would not consider an application for temporary or permanent residence. The new scheme introduced in March of 2015 attempts to rectify these problems by implementing measures that will have the effect of encouraging and facilitating obtaining regular immigration status:

• The visa holder can now engage in other activities beside employment, such as education. A

person can also work for different employers now, or even be self-employed. This reduces

the likelihood of workplace abuse or discrimination, as the worker can resign without fear

for falling into irregularity.

• If employment is terminated, the visa holder will now have a one-year grace period to find

employment and obtain a new contract, as opposed to one month. This means a person can

undertake employment through the grace period, but only has to provide a contract at the

end of the one-year period, that is, at the time they request the renewal of their visa.

• The person may now apply for permanent resident status after only one-year of

employment, as opposed to two years, which reduces the chance that people lose their

residence status.

• Finally, employers are no longer obligated to pay for travel costs to the employee’s country

of origin once employment has ended.

Civil Union Visa

With the creation of the civil union visa category, same-sex couples can now immigrate to Chile (when both partners are non-Chilean or when just one is Chilean national), as well as their dependents. Prior to the creation of this visa, same-sex couples would have to resort to creating fictitious employment contracts in order to immigrate.

Nationality

According to the constitution, a person born in Chile is deemed a citizen except for the children of parents who are in Chile while in the service of their country, and the children of parents who are in Chile in a transitory manner, essentially tourists and people in transit to another country. Since 1995, the Ministry of the Interior took a different interpretation of what transient means, adding that a person without the proper authorization to be in the country is also considered a transient foreigner (Rodríguez and Valdés 2015). Thus, the Civil Registry has applied this definition to parents of children who do not have the proper residence and work authorization, even though they are clearly not transient. As a result, many children born in

Chile and who could have been registered as nationals were simply denied this recognition. It is

estimated that between 2000 and 2014, more than 3,000 children born in Chile were registered as children of transient foreigners (Bley 2015). Not only were they denied Chilean nationality, but unless their parents’ country of origin would recognize their right to the same nationality as their parents, these children were left stateless. However, since August 2014, the Ministry of

Interior has changed its position on this matter, reinterpreting once again the meaning of transient foreigner. From that point onwards, DEM issued specific instructions (Notice N27601 of August 14, 2014) to Civil Registry authority so that they would no longer register these children as “children of transient foreigners,” but to limit its interpretation of transient, and to apply it specifically just to foreigners who have a tourist or crew member visas (Rodríguez and

Valdés 2015; Instituto Nacional de Derechos Humanos 2015). Under the new interpretation, if parents cannot produce residence or work visas it does not mean that their children born in the country will not be considered Chilean nationals.

Others

Finally, DEM has adopted changes to the Immigration Regulation (Supreme Decree 597 of

1984) in order to facilitate regular status for immigrants. These measures include:

• End to the practice of withholding identity documents from persons in breach of DL 1094.

According to Article 82 of DL 1094, when authorities become aware of an immigration

infraction, they shall “obtain the offender’s declaration and withhold the documentation

that is relevant.” As a result, authorities would proceed to take documents such as passports

or other types of personal identification from a person deemed to have committed an

infraction. In its place, the authorities would issue an Offender Identification, to be used by

the person while his or her case was being processed. This document, however, would not

be recognized by other public or private entities, leaving the person without the ability to

carry out any activity that requires identification. With changes to the Regulation,

authorities can now only withhold a Chilean identification, but not a person’s passport or

other documentation issued in their country of origin.

• Temporary resident visa for persons convicted of a crime. With this modification,

immigrants who are serving a sentence, whether in prison or in the community, may apply

for a temporary resident visa. This allows the person to be employed (for those who serve

their sentences in the community under supervision), have a bank account, access

government benefits and programs, among others.5

• The cost of a visa for a minor was reduced to a flat fee of 15 USD (whereas before the cost

would be determined on a nationality basis, the same as for adults). In addition, minors are

no longer subject of immigration infractions, in recognition of the fact that the responsibility

to be in compliance with immigration legislation should fall to the parents or guardians and

not to the minors.

2.3 Conclusion

This chapter has focused on first, providing a historical overview of immigration policy in Chile, and second, discussing the current legal framework and recent policies adopted. In the period after independence, immigration policies were in line with other settler societies (based on the view that Europeans were thought to be the ideal type of immigrant). Chilean political

5 It should be noted that if there exists a deportation order (in addition to the conviction), the order remains in force and the person will be deported after completion of their sentence.

elites believed that white Europeans would help transform the backward ways of indigenous populations and invigorate the nation with their culture. However, these policies had limited success as spontaneous immigration of immigrants from other South American countries outpaced the migration of European ones. With the military coup of 1973 a new outlook on immigration was adopted. Policies became securitized and foreigners were no longer desired for their nation building potential, but political ideology became the ruling criteria. During this period, Chile became a country of emigration, as people were forced to leave the country due to political persecution and economic policies of the military regime. Finally, after the return to democracy in the early 1990s, Chile entered a third stage of immigration, as the country once again became an attractive destination for foreigners, particularly those attracted by better remunerated employment than in their countries of origin6. This stage differs from the previous two in that migration is more market-driven, and foreigners are desired because of their economic potential and employability. In this stage, the government adopted a new role in shaping immigration and avoiding the potential conflicts that could arise as people with different cultures settle in the country and participate in its institutions.

This chapter also discussed recent policy changes in terms of immigration, particularly in the access to social rights. These changes in policy have taken place even though the anti- immigration legal framework adopted early on during the military government (that is, during the securitization of immigration period) is still in place. While still ruled by DL 1094, immigration policy and the institutions in charge of implementing have been transformed by

6 Although Peruvians notably migrated to Chile in the 1990s as a result of the political violence experience during the civil war.

the addition of other actors, mainly the social ministries, even though these last ones do not have formal powers in regard to immigration policy. This has resulted in policies more tolerant of immigration and settlement of new comers than if DL 1094 were followed as intended. The following chapters will discuss how state actors in different levels and areas of governments have managed to transform the institutional landscape of policies that promote immigration to

Chile and the incorporation of immigrants while still being constrained by DL 1094.

3. Depoliticizing immigration policy in central government

In Chapter 1, I introduced the main question at the centre of this study, namely, how have

Chilean governments after the return to democracy manage to expand the rights of immigrants in spite of the institutional constraints imposed by DL 1094. In order to answer this question, it is necessary study the institutional context in which immigration policies have been created in the post-authoritarian period. created. In this chapter I will discuss the first of three venues which have advanced pro-immigration policies in Chile in the post-authoritarian period of government, namely, the central government. This chapter will talk about how old and new actors in Chile’s central government transform formal institutions. Policy changes have resulted from, on the one hand, the recruitment of new actors in central government with no formal powers over immigration policy, and on the other, the acquisition of new powers by old actors.

These actors have found ways to “work around” the constraining framework imposedby DL

1094, including the depoliticization of immigration policies.

3.1 Old and new actors in central government change the landscape

As discussed in Chapter 2, in Chile the executive branch of government, more precisely the

Ministry of Interior through DEM, has been in charge of establishing immigration policy.

However, in recent years, new actors have taken a lead role in this policy area. These are the social ministries (Health, Housing, Education, and Social Development). This is important because DL 1094 makes no mention of access to social rights for foreigners, nor does it include a

role for these ministries in its framework. In addition to these, DEM has acquired a renewed role. As this section will discuss, actors in central government have forged alliances with organizations of civil society, who also are important actors in shaping immigration policy at the national level.

Since Chile returned to democratic rule in the 1990s, Chilean bureaucracy has been in charge of creating and expanding immigration policy, more so than political parties or politicians. A leadership official in DEM reflects that this has been an implicit policy of governments since the return to democracy, that “politicians have let [the bureaucracy] do its thing” (Interview August 27, 2015). At the same time, the fact that the bureaucracy has been left to work on this problem on its own has strengthened their expertise, turning them into the most qualified group to with knowledge on the subject.

Although there is not one particular path that actors in the central government follow to become involved in immigration policy, their backgrounds do share some characteristics that speak to their technical competencies. First, policy is done by professionals with technical knowledge about the issue, not by politicians who are responding to the preferences of an electorate or to short-term political cycles. The backgrounds of relevant actors vary. Some of them have studied and worked on immigration for many years, giving them a more technical view on the problem. Others have less experience on the subject, but are experts on other social areas such as health or education, which also gives them technical competence. Others are bureaucrats recruited from other policy areas of government to work on developing new immigration policies in light of the new immigration reality the country faces. These actors pursuing immigrant friendly policies are not politicians, but rather, professionals within the

different ministries who have technical expertise on not just immigration, but health, education, social policy in general. Many of the participants had degrees in areas such as sociology, law, economics, etc. They have worked in their area of expertise inside or outside of government for years. Many, in addition, had links or had worked for non-government organizations providing services and advocacy on behalf of immigrants.

In general, officials in the DEM perceive a lack of state response to the challenges posed by the new immigration to the country. In particular, DEM officials who participated in this study described how the Chilean state had failed for many years to truly question itself what kind of force immigration should be, how it should be managed, or if it should be restricted. Noting for example the Chilean state upholds a unified discourse on other social subjects, such as poverty,

A DEM official noted,

“The Chilean state doesn’t have a discourse on immigration, one story. You can meet with 20 high level state staff and ask them what to do about immigration and they will give 20 different answers. In Chile you ask the same thing about poverty and they will all give one single answer, to eradicate poverty” (Interview August 6, 2015).

In the absence of a state institutionalized immigration policy at the national level, actors working in the executive branch draw from their professional backgrounds and training. An illustrative example is a staff member in the Ministry of Housing and how she considers her training permeates the way she carries out her job and the kinds of initiatives she believes are worth pursuing,

“I think everyone working [on immigration policy in the ministries] is very appreciative of the subject, why else, because they enjoy it, same like me, same like [person in Ministry of Social Development] who has been working for years, I too studied, in Barcelona, I completed my studies in immigrants’ housing access, and so you are left with that itch about your own

studies, and so you want to set it up as one of topics that you are working on nowadays, and so I run into the topic.”

And in regards how others within the various ministries follow a similar heuristic, she indicates,

“I think the same thing happens to other colleagues working within the other services, within health, within education, everything we are doing is working precisely to break down barriers, and so I think there’s agreement with [our] discourse, but I also think that it goes through the personal discourse, or the professional discourse, of those of us who are there, those of us working there we are there not because we are prejudicial or discriminatory, but the opposite (Interview August 19, 2015).

Actors involved in this process have positive ideas about immigration and feel their role and interest in the issue are crucial in pushing forward a policy agenda. The specific ways in which their roles have been transformed will be discussed next.

3.1.1 DEM acquires renewed authority

First, it is important to point out how the immigration portfolio in Chile does not have a cabinet ranked position. As previously mentioned, DEM is a subunit within the Ministry of

Interior, and more specifically, under the Subministry of Interior, which denotes its conception as a body more engaged with national security rather than immigration policy. The subministry is, “the immediate collaborative body for the Ministry in all of those matters pertaining to the interior’s public security, upholding of the public order, the government’s territorial coordination, and other entrusted tasks” (Act 20502, 2011, article 9).

Furthermore, the Chilean executive branch is composed of ministries, sub-ministries, divisions, and at the very end, departments, such as DEM. Looking at the hierarchical structure1

1 Organizational charts for the Ministry of Interior and its Sub-Ministry of Interior can be consulted in Appendix B.

within the Ministry of Interior, one can establish that DEM is not a high-ranking department within the ministry, yet it is charged with the enormous task of creating and implementing the country’s immigration policy. DEM personnel are aware of this mismatch between the department’s formal responsibilities and its new role in establishing the country’s immigration policy. As put by a DEM high-ranking official, “The head of DEM is institutionally equivalent to the person in charge of administering the vehicles for the Ministry of Interior” (Interview

August 27, 2015).

This institutional incongruence was made clear in the way that immigration policy used to be carried out prior to 2014, when DEM used to be more in charge of the administration of procedures linked to immigration, namely issuing visas, residence permits, naturalizations, and maintaining records on these procedures. The department was also called to assist with ad hoc procedures as governments saw fit, for example whenever a government decided to enact a massive regularization. However, the department was not consulted on whether a regularization should take place or not. According to DEM officials, high ranking staff at DEM would be consulted to provide technical input, but the ultimate decision was not made by DEM personnel. An official during Piñera’s government reflecting on the role that DEM used to have after the return to democracy, commented that,

“The DEM was highly bureaucratic and not focused on people at all […] and besides we found an outdated and anti-immigrant legislation, and total lack of policy, there was no mission for the state, there was only a sausage machine that would issue permits” (Interview August 6, 2015).

Despite these institutional limitations, in recent years DEM’s role within the process of immigration policy making has been largely transformed, from being just the administrative

arm of the government on immigration matters, to becoming the leading government venue and civil society interlocutor when it comes to immigration policy debates. In other words,

DEM gained authority beyond merely administrative tasks, to direct other ministries, well above its hierarchy, in their efforts to create, mainstream, and implement immigration policy.

DEM’s empowerment took off in 2008, when as per Presidential Directive 9, it was given the

Technical Secretariat role to the Immigration Policy Council (Consejo de Politica Migratoria), or

Immigration Council. In this role, DEM would be responsible for the intersectorial implementation of the principles contained in the directive, meaning it would have a coordinating role over the other ministries (President of the Republic, 2008).

The Immigration Council’s goal was to serve as an inter-ministerial body which would advise the president on immigration policy. However, the council was not created during the first Bachelet government, but was later established by presidential decree (Decree 1393, 2014) during her second mandate. By early 2015, the council still had not only not met, but a different, more technical body was created in its place in early 2015, the Immigration Policy Technical

Council (Consejo Técnico de Política Migratoria), or Technical Council. This body was established to set the agenda and provide technical input to the Immigration Council. The Technical

Council was composed of seven thematic groups, each coordinated by different state bodies with an interest in immigration policy: social inclusion, labour and innovation, immigration policies information and follow-up, inclusion and interculturality, international affairs and human rights, emigration policy, and lastly participation. These working groups, along with its participating members, were conceived and assembled by DEM personnel. The Technical

Council’s main objectives were to update Presidential Directive 9 with a new, more

comprehensive directive, which was to provide the guidelines for what Chile’s new immigration legislation should be. To this end, members of each group participated in regular meetings. Interviewed participants who were members of the technical council indicated that their goal in participating was to make known the objectives and needs of the units they represented in regard to immigration policy. After several months of work and meetings, the representatives of each group plus members of DEM conformed the Technical Council’s

Executive Committee. This committee, having received information from the seven thematic groups, worked on updating the 2008 Directive. The updated version was finished by the committee in July 2015, and signed by the president on November of 2015.

This institutional reconfiguration of DEM’s role is important because, as stated before, the immigration portfolio does not have a ministerial position in the Chilean executive branch, hence, the creation of bodies such as the Immigration Council and the Immigration Technical

Council allow DEM officials to mainstream the immigration agenda through the other ministries, an opportunity it did not have before Presidential Directive 9 of 2008. For example, the 2015 Directive which establishes immigration policy and instructs government bodies on it, was the direct result of DEM’s staff coordinating and filtering the work of the thematic groups in the technical council. This is very different from the situation described before, where the

DEM was consulted at best, but decisions were made elsewhere.

DEM’s new role in heading the mainstreaming of immigration across other state units is recognized by interview participants. According to a DEM official, there is a new DEM, which

“is changing that emphasis [where decisions were made outside of DEM], and the new emphasis is that immigration policy in Chile is performed from within the Ministry of the Interior, mainly the DEM. And for this reason DEM is empowered, it gets more resources, more

faculties. Nowadays it is unthinkable that a bill would not come from here, let alone that they ask us. The validation is done outside, but here it’s where [the bill] is worked on” (Interview August 27, 2015).

Second, DEM has become the main state interlocutor with civil society demanding changes to Chile’s obsolete immigration legislation, particularly in the second Bachelet government (2014-2018). In 2015 the government sought input from civil society for the purposes of drafting a revised immigration directive (what would later be Directive 5 of 2015), and doing preparatory work for drafting a new immigration bill. The new role DEM played in this process can be seen in the way it led the dialogue with civil society. DEM instituted a participative process, called Consultative Meetings (Encuentros Consultivos), which consisted of a series of meetings, eight meetings in total, from November 2014 to January 2015. The meetings took place in different regions of the country, and three of them took place in Santiago. The meetings cast a wide net, inviting organizations such as universities, municipal governments, representatives of ministries, immigrant-based organizations, international organizations, organizations of civil society working with immigrants, and others not exclusively created to assist immigrants2. With regards to the attendance and participation by civil society, a leadership official in the DEM noted that all those organizations that were invited did participate in the process, provided their input (although this did not mean their participation was not without criticism), and “none of them didn’t acknowledge the DEM, there is no alternative process, they are all participating in the DEM’s agenda, the department has that legitimacy and recognition” (Interview August 27, 2015). The process and its conclusions were

2 The list of 2019 participant organizations and government representatives can be found in DEM’s final report (DEM 2015).

not without critique by its participants; common concerns included questions about the methodology of the process, whether the new law would be sufficient to enshrine the rights of immigrants, whether it would be enough to create a new institutionality around immigration policy, and other valid criticisms (DEM 2015; Interview July 10, 2015). However, they all agreed with the words of DEM’s director, in that they were partial to a new law, they participated in the process in good faith, and did not attempt to delegitimize it. A leadership official in the

DEM describes how at the start of the second Bachelet government in 2014, civil society groups were skeptical that the department would become the central key player due to its rigid tradition up to that point; however, the official notes how this relationship has changed, to the point where civil society organizations feel the DEM should take a leadership role in advancing immigration policy (Interview August 27, 2015). This relationship can be seen in the way organizations of civil society participated in the process put forward by the DEM to obtain public input which would serve as the basis for working on a new immigration law proposal.

In addition to gaining new competencies, state actors in part of DEM work closely with actors in civil society in elaborating policies on immigration. Civil society is a small community, and civil society actors know each other. A staff member in the DEM notes that the work done prior by civil society is crucial in shaping government policy on immigration,

“We are now working on a new law and public policies, and that can’t be understood if we haven’t worked already with civil society. The issue was taken up by civil society, and that was taken by the [Pinera] government, right-wing, and by [the Bachelet government], the last two governments, and they have had much respect for what the small civil society has to say. Civil society working on immigration is very small, 10 to 15 NGOs in all of the country, a few academics, there’s no university institute on migration” (Interview August 6, 2015).

In general, there is a collaborative relationship between the DEM and organizations of civil society. Participants from both sides were able to confirm that they share views with one another, and that there are open lines of communication. Much of this close relationship has been forged since 2014, with the beginning of Bachelet’s second government, and with a change in personnel at the head of the DEM. For example, the director of an organization providing services and assistance to immigrants noted how his organization speaks to officials in the

Ministry of Interior as well as DEM, and how the organization sometimes has received calls from government officials seeking to inform themselves about issues that immigrants face

(Interview July 29, 2015). The director of another immigrant services organization with national and international presence also agrees that his organization has access to government officials; he believes that the “the doors have always been open” and whenever they have requested a meeting with ministers their requests have been granted (Interview July 23, 2015). In addition, officials working at DEM believe that for them it is important to listen to actors of civil society.

They find in organizations of civil society and experts a community which shares their language, are knowledgeable on the subject, and can help the state to ameliorate their weaknesses. Also very important, by working close to civil society, they obtain legitimacy, which is important as policies which encourage immigration and protect immigrants do not tend to be seen favourably by nationals.

Some participants mentioned how different the Consultative Process described before was in contrast with the work done during the government of President Sebastián Piñera (2010-

2014). While there were consultations, these were not in an open forum venue, but rather they were bilateral and behind closed doors. Some participants indicated they were called to give

their opinion by the Piñera committee working on the immigration bill, however the process was not open or participatory. In contrast, even though some expressed criticisms on the methodology of the Consultative Process, participants were much more pleased with how their opinions and expertise were considered during the consultative meetings of 2014-2015. A participant working on immigration policy in the Ministry of Social Development even describes the interaction between officials from the DEM and actors in civil society as too strong. According to his opinion, the DEM leadership has sought input from civil society experts much more than they have sought opinion from other state actors. The participant noted,

“They have sought a very strong alliance with civil society and not with their state counterparts, and I have said this to the Head of DEM, he doesn’t like it, but I’ve said it, that their counterparts are the state, but he has sought much support from civil society. I have been very critical of this, how is it possible that they have worked more in many things with civil society than with the state, to me this is very strange, but civil society will say they [DEM] have worked more with the state than with them” (Interview August 10, 2015).

In sum, in spite of its conception as an agency engaged with national security rather than immigration policy, and its position as a low-ranking department within the Ministry of

Interior, DEM’s role has transformed, from being the government’s administrative arm on immigration matters, to becoming a policy generator and interlocutor with civil society. This is largely due to the Presidential Directive 9 and its successor, which created new institutions, engaged new actors, and gave DEM a central role in the coordination of these.

3.1.2 Social ministries acquire new powers

The second way in which the traditional venue of immigration in Chile has been transformed is through the shifting of responsibilities, or sharing of responsibilities, with new

actors, namely, the social ministries. These are non-formal actors in the sense that their participation is not dictated by DL 1094 or formally regulated. They have, however, acquired increasingly more and more responsibilities in this area. Their participation started organically, without initially being coordinated by a central actor (such as DEM). In a way, social ministries began looking for solutions to their own problems, and so actors conceived of immigration policy as something to be subsumed under each ministry’s mandate. However, their participation is now an integral part of immigration policy discussions. Later, their participation in immigration policy became more structured and in line with DEMs agenda, through their participation in the Technical Council, as well as through the creation of immigration units within the ministries.

The area of access to health for immigrants, dealt with by the Ministry of Health, is perhaps the earliest example of how a ministry adopted norms/rules outside its area of authority in immigration policy, to ensure access to health for immigrants. Health officials early on identified two groups of immigrants which were particularly vulnerable due to their precarious status, pregnant women and children. The subsequent policies adopted aimed to protect these vulnerable groups, especially if their immigration status was not authorized.

Health authorities were criticized after a number of cases where immigrant women had been denied access to healthcare during their pregnancy, when frontline medical personnel had turned women away by telling them that as immigrants, they did not have a right to prenatal care. There exist reports of one infant dying as a result of discrimination (Universidad Diego

Portales, 2015). Even in cases where pregnant women did receive prenatal care, they tended to access services much later in their pregnancy than Chilean women.

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With this background, as early as 2003, ministry authorities had adopted their first immigration instrument, with the goal of instructing health establishments to provide access to health for pregnant women without prejudice of their migratory status in Chile. A staff member from the ministry explained how the measure kept in line with other historical priorities of the ministry:

“That was the first measure, given that in Chile there is a long history on the issue of protection of infancy, maternal-infant [health], and we have programs in the area, in the south zone of the Americas, of health management with very good results with respect to that area, of maternal- infant mortality, we have very good performance rates, and so I think this [attention to immigrants] began to appear in a country with a healthcare tradition like something that needed to be dealt with […] For health officials in general care for pregnant women is a right, but because this population was irregular, the decision was made to take affirmative measures for this population.” (Interview September 1, 2015).

The initial efforts were to put an end to discrimination, to educate health officials and healthcare practitioners, doctors, nurses, that they could not turn away a person, especially a minor or a pregnant woman, based on their immigration status.3 By 2006, two years before the first presidential directive was signed, the ministry created its first immigration unit, the

Ministry of Health Advising Group on Immigrants and Refugees Health. This advising body was composed of health professionals from various areas within the ministry, and its role was to coordinate different agencies within the ministry in regard to the healthcare of immigrants and refugees, engage in research, propose regulations, and represent the ministry in interministerial and international forums.

3 It should be noted though, that other immigrants with an irregular immigration status only have a right to emergency medical attention through the public health system (they may obtain services through the private system if they can pay for the costs associated).

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The group was active during the first government of Bachelet, 2006-2010, but with the arrival of the Pinera government the group was dismantled. With the arrival of Bachelet’s government in 2014, the minister of health asked that the advisory group be re-established.

Coordination for the new health unit was responsibility of the Strategic Development Unit.

Strategic Development is a technical advisory body within the ministry, advising on emerging areas which may be of strategic importance, which are trying to be institutionalized, or for which policies are being developed. For example, Strategic Development oversees emerging topics such as environmental issues, global warming, other priorities such as cancer, and access to health for immigrants. The new advisory group extended beyond the ministry, to incorporate experts from the National Health Insurance Program (Fondo Nacional de Salud, or FONASA) and the Health Superintendency (Superintendencia de Salud), which oversees FONASA and the private insurers. More recently, the efforts of this body culminated in the 2017 International

Immigrants Health Policy (Ministry of Health, 2017).

Another clear example of this organic process is the Ministry of Education. According to the ministry, there are 75,000 immigrant students enrolled in an educational establishment in

Chile, but about 31 percent of them do not have a resident permit (Universidad Diego Portales

2017). Initially, immigration policy was not an area or concept that was seen by the Ministry of

Education. But educational authorities began having issues when students were turned away by educational establishments or they were held back for failing to provide a visa or residence permit, as school authorities do not validate studies completed without a residence permit.4

4 It is also the case that school authorities will drop students just before the end of the academic year.

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Another set of problems involved equivalences or recognition of studies, as more and more frequently children arrived to Chilean educational establishments without regular migratory status. Even though Chile is party to the Andres Bello5 agreement, and also the Mercosur agreement, these were not sufficient as children without regular migratory status could not claim recognition or validation of their studies under these instruments.

By the year 2007, education authorities began adopting procedures to assist with cases such as these. Initially, this was limited to information and advice on issues related to how to register in an establishment, how to report discriminatory practices, how to obtain a temporary identification number for a student without a residence permit, and to obtain information in general. And so the ministry has a dedicated area for disseminating information to the various users depending on their situation, migratory status being a usual reason to ask for information.

A more important effort to institutionalize immigration policy within the ministry took place when the matter was assigned to the Regulation Unit (Unidad de Normativa) under the General

Education Division (Division de Educación General). The division deals with technical, pedagogical and compliance aspects of education in relationship to the various regulations and instruments which guide Chilean educational establishments, such as the various international instruments which Chile is party to, the constitution, and other instruments that regulate education in the country. And for this reason, the issues created by the arrival of immigrant children to Chilean educational establishments is first assigned to the Regulation Unit. A staff

5 The Andres Bello Agreement is an intergovernmental body which seeks the formation of a common educational and cultural space among participating states. It has 12 member states, 11 Latin American and Caribbean states, plus Spain (http://convenioandresbello.org/cab/estructura-del-cab/).

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member from the Regulation Unit explained how she began working in issues pertaining to immigrant students,

“And because I was in charge of matters of recognition of studies and regulations, the matter [of immigration] reaches me. Who is in charge of immigrants in the ministry? Officially it was no one, because it is not a concept that we use [...]. It begins with ‘who is seeing this,’ ‘who has talked about this?’ and so this matter reaches me and I began to be asked to hand out information…” (Interview August 24, 2015).

Noting the ad hoc, organic, creation of a unit dedicated to immigration within the ministry, she adds,

“The ministry had to inform on what it was doing to protect the right to education for the children of immigrant families. That is why this issue reaches me, little by little, but not because I am a specialist in immigration, or because I have studied it in terms of the immigration phenomena.”

Following this initial stage, and similar to the process that took place within the Ministry of Health, education authorities began to coordinate their resources. The different individuals at various levels and offices, who in some form or other were working on themes related to immigration were organized into one central body and in 2014, the Unit of Inclusion and

Citizen Participation (Unidad de Inclusion y Participacion Ciudadana) was established. The unit is responsible for advancing inclusion of all student who for any reason (ethnic group, language, gender identity, immigration status, etc.) are excluded from the educational system.

Once the agenda on immigration was firmly established as one of the thematic areas or priority areas of the ministry, a different strategy was adopted in order to mainstream an immigration agenda through the Ministry. In October of 2016, the Migrant Coordination Group

(Mesa de Coordinacion Migrante Mineduc) was created. This coordination group had two main goals, mainstreaming the immigration agenda across the various divisions of the Ministry, and

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having a group devoted to advancing the inclusion of immigrant students into Chilean educational establishments.

Although somewhat behind the health and education portfolios, the Ministry of Social

Development has also established an immigration unit, the Immigration and Social Inclusion

Unit. This took place in late 2014. It was mainly the result of efforts by former Ministry of

Health staff who had been transplanted to social development. The goal of the unit was to ensure immigrants, particularly those considered vulnerable, could access social protection programs. Its main initiatives included working alongside the municipalities (discussed in

Chapter 4) to ensure front line personnel were aware of policies (such as those coming from the directives) in the delivery of services, but also to ensure immigrants knew how to request information and access to programs and services.

3.2 Working around formal immigration rules and institutions

Even though actors do not have the power to alter formal institutions (for example passing new legislation, changing the formal powers of actors as established by DL 1094, or establishing a new body such as a new Ministry of Immigration), they do have the capacity to work around formal institutions and create new policies, through the deployment of informal

(not sanctioned through immigration legislation) instruments. These instruments, although they do not carry the authority which legislation does, are nonetheless perceived by actors as norms to abide by, and therefore are key in understanding why pro-immigrant policies are adopted by the various actors involved in creating immigration policy.

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The scenario described above, new actors involved, and old actors acquiring new competencies, cannot be understood without making reference to the mechanisms which allow actors to work their way around formal rules to introduce pro-immigrant policies. Actors can create new policy without having to engage in more public venues, such as legislative changes would, by resorting to various administrative mechanisms that justify their participation.

3.2.1 Presidential directives as policy foundations

Presidential Directive 9 of 2008 on immigration, and its successor, Presidential Directive

5 of 2015, are crucial in explaining how progressive immigration policies are adopted in a context of rigid, anti-immigrant, formal institutions, that is, in explaining how actors acquired the new powers discussed above. These mechanisms are foundational in the sense that they are used by policy actors in justifying further administrative measures in favour of immigrants.

Actors regularly refer to these instruments as being more than simple guidelines or standards, but in a way almost having parity with legislation, and requiring clear and precise actions by state agencies.

The first directive came to continue a trend of more openness and transparency of immigration policies gradually adopted by the Concertación governments (as described in

Chapter 2). The goal of this directive was to provide the basis for a future immigration policy.

The directive was clear in its goal of establishing Chile as an immigration-receiving country, labelling it “a welcoming country,” (un país de acogida) for immigrants. The directive provides a set of principles to be respected, such as free transit, freedom of thought, access to justice, social protection, no discrimination among others. Furthermore, the directive also considers the issue of safe migration and considers the special conditions of refugees. As discussed in the previous

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chapter, the directive is of great importance, as it is the first official document in a post- authoritarian government to make explicit a policy on immigration, along with recognizing principles such as the access to social rights for immigrants, among others, something which DL

1094 makes reference to.

Moreover, Directive 9 completely altered the institutional landscape, by conferring DEM a central role in coordinating other actors brought in to provide input in drafting the new policy, namely, other ministries. As established by the Directive, “The Ministry of Interior, through the Department of Foreigners and Migration, shall act as the technical secretariat for the Immigration Policy Council, and in that role, shall develop an intersectorial strategy that implements the principles established in this policy.” While the ultimate authority still rested with Interior, the Directive gives DEM a completely new role from that which it had been given in DL 1094.

By the second Bachelet government, the idea was to update the old directive, taking into account the advances made by the adoption of the first Directive, and to develop a more robust policy-guiding document, with more ambitious goals. The new directive was also to take into account the principles on immigration outlined in the government’s platform. Throughout 2015, members of the Technical Council worked on drafting this new directive as part of their regular meetings, and as such, the resulting instrument was a direct result of the work carried out by individual members of this body. A DEM staff member participating in the council’s meetings explained,

“The final text came from a first draft, and there were discussions with the chair of every thematic group, who were supposed to represent the different institutions, and the chairs made comments and improving [the draft]. Then that draft was sent back to the bases so they all

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could comment on it, the comments were incorporated, then discussed again, then the draft presented to the whole group again. They gave more comments, then the process was finalized within a week or so, and the draft sent to the minister” (Interview August 14, 2015).

This process was quite different from the way in which the first directive was drafted and finalized. In 2008, the task fell solely to DEM staff, and then was approved and signed by the president. Since it was the 2008 Directive which established that other ministries were to provide input in creating policy and no interministerial body had been created at that point,

DEM was not in a position to convene actors to work on what would be the first directive. The situation was much different in 2015, when a precedent had been established.

All participants had knowledge of the first and second directives and agreed that they were guided in their activities by the principles contained in them. Relevant actors in government and civil society see the directive as almost having parity with the law, and they feel that the institutions and their actors ought to abide by it; they do not need it to become law for them to apply its principles. It is clear that both directives have acquired incredible relevance in guiding the behaviour of actors in central government and advancing immigration policy, in spite of the directive’s low rank or quasi-legality. For example, a DEM staff member stated how for him, a directive is a much more powerful document for policy-guide than just a new bill,

“How does one use a directive? The hierarchy of a directive is very low, but if this government uses it as a foundation, and adopts it as its political mandate, then that is how we align our actions […] It provides a foundation to everything, the political actions with regard to the Technical Council, and all the advances made of late are framed within that context” (Interview August 14, 2015).

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Another DEM official had a similar opinion on the second directive, seeing this instrument as a powerful companion to an eventual immigration bill,

“The new directive, which will come out very soon, will say, if there were 20 ways of framing [immigration] now there will be one way only, a welcoming country. It will talk about a new bill, about public policy, about a national immigration service, about international treaties. It is a directive, it orders that something be done. It has been drafted and now the president will sign it. That is how you make public policy, a bill by itself won’t stay above water, it needs a general framework” (Interview August 6, 2015).

In addition, actors see the directive as a call for action. For example, a DEM official notes how even though legislation ought to change, this does not mean actors are left without recourse to improve what they perceive as a precarious situation for immigrants, “There is a law that has to be changed, but in the meantime, even though it doesn’t change, that cannot be an excuse so that people continue living under unjust conditions. The legislative is long-term, but on the other hand the available administrative measures that allow the meeting of that standard are used” (Interview August 27, 2015).

Furthermore, it is clear actors in central government saw this instrument as policy- guiding and adopted by actors from all levels. A staff member from the Ministry of Education noted,

“The first directive, which is still in force because the second one has not been signed, did mobilize, did help a great deal, in my opinion. All the ministers were aware [of its existence]. It’s not like there was someone in charge [in Education], but there was a general interest in that [the directive] be known and spread, and for it to be published in the website, and that we could provide answers” (Interview August 24, 2015).

Members of Technical Council also expressed how they would take directive as a foundation to policy-making, for example, a council member from the Ministry of Housing noted,

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“We meet once a month, and the different ministries participate […] An important task was to update the presidential directive. The idea was, we all observed from our different areas, we gave our opinion on what had been instructed, on what we can do, on what we are doing, how we as a public service conceive [immigration]. And departing from there, we will generate a proposal, then comes the directive’s proposal, which also needs to be taken into account in defining or building immigration policy, because at the end everything should be completely aligned, what the directive says with the policy, with what each of the services are doing” (Interview, August 19, 2015).

And a similar view on how the directive shaped policies within the Ministry of

Education was expressed by a ministry’s staff member,

“The first directive, created to promote the families of migrant workers as stated in the agreements signed with the ILO, based on it, we began formulating a series of instructions from the ministry to other state services […] The directive is known, and we worked a great deal on it with Minister Bitar and the following ministers, because it was part of the government’s plan, it was there and it was used” (Interview August 24, 2015).

In sum, for actors in the social ministries as well as DEM, the directives have been key in advancing the immigration agenda. The directives provide both justification and guidelines for policy-making. They provide justification, because even in the context of a repressive immigration law which makes no reference to the social rights of immigrants, policy actors can point to the directives and justify the need for specific actions. And they provide specific guidelines, such as that Chile shall be a welcoming country that seeks to integrate immigrants while respecting their cultural backgrounds, among others (Chapter 1, section 2.2.1). The first directive also gives DEM a different role, a more central and coordinating one in establishing policy, from the what was intended by DL 1094. Actors conceive of these instruments as having powers which allow them to “build around” the already established legal framework on immigration, and in this way create public policy.

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3.3 Depoliticizing immigration policy

As discussed in the previous sections, the adoption of instruments such as the presidential directives has allowed new actors to become part of the policy-making process. In addition to justifying policies as dictated by the presidential directives, actors involved in this process also justify policies as advancing other causes besides immigrants’ rights. Chapter 1 discussed depoliticization as the shift in policy authority (from political actors to non-political experts, or when experts seek to enter the policy process and create a depoliticized sub-system).

However as previously argued, depoliticization of a policy issue can also be understood by looking at the policy target group. Policies become depoliticized when actors present as universalistic, rather than as pertaining to a particular group in society.

Two policy frames can be identified: a “modernizing the state” frame and a “leveling the field for everyone” frame. I argue this allows actors to present policies in a depoliticized manner and thus, encounter less resistance. The remainder of this chapter will discuss both of these depoliticizing frames in more detail.

3.3.1 First frame: modernizing the state

As described before, immigration policy in Chile is advanced by a number of state agencies, some of which have formal power over this policy area (such as the Ministry of

Interior and DEM), and others which have only become important actors in recent years, but which have no formal powers on immigration other than those conferred by presidential directives. In addition to this, DL 1094 is no longer a workable legislative framework that sets the pace of immigration policy-making. In interviews with participants it became evident they

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find the current state of affairs as lacking in terms of making their country backwards in terms of the management of its immigration policy. And so they tend to justify their participation in this policy area, for example in the Technical Council or their roles in their respective areas, as ways in which the Chilean state is moving towards a modern, more efficient way of doing immigration policy. The policies adopted have another dimension beyond assisting immigrants and protecting their rights, namely, making the state more efficient in its interactions with the immigration population.

The effort to modernize DEM took place in the context of a broader effort by the government of Piñera to modernize a number of state services. As explained by a former

Ministry of Interior staff, the Piñera administration advanced initiatives to improve the access to public services and information for users, the most well-known of these was the program “Chile

Assists” (Chile Atiende), which centralized a number of services so that a person would not have to visit difference offices in order to complete a procedure or avoid red tape. And government authorities in charge of this process realized that DEM was no different in the sense that authorities were inefficient in the way they interacted with its users, namely immigrants. As explained by the same staff member,

“An immigrant would arrive, they would knock on [DEM’s] door, then more papers would be requested, a letter was issued, then a police background check was requested. There was no control, and we found this situation. We had some minor crises, for example when a group of 22 immigrants were detained by the police for days, and we found they were nationals of another country but they didn’t have the same access to rights as Chileans” (Interview August 6, 2015).

This state of affairs, where people are unnecessarily subject to red tape and bureaucratic dealings, is, according to participants, produced by the absence of planning and strategizing

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about immigration at the central level. For example, a staff member from the Ministry of Social

Development noted,

“I believe that Chile must have a more active immigration policy, more proactive, more reflective with regard to what are our population needs, and not just leave it up to the free market. If there’s work people come, if there isn’t, they don’t come, and that is how the system works today” (Interview August 10, 2015).

The lack of resources for activities that can better inform policy is also seen by actors as something in need of remedy. For example, a DEM staff member explained,

“DEM is the state’s technical body in charge of immigration, which for many years was just involved with visa controls and very little with immigration management, like with research. But this has changed in the last year and a half. My responsibilities are new, it is a role that was created. There were many tasks that were not habitually done before” (Interview August 6, 2015).

An important part of the problem is that policy actors have been taking measures in isolation, more so prior to the creation of the Technical Council. As explained in the first section of this chapter, the ministries had to come up with solutions to problems they faced as a result of increases in immigration, and in a context where DEM was more than anything an immigration control apparatus and not a policy-maker. As a result, many of the measures taken by the ministries were done in isolation. A staff member from the Ministry of Education discussed how this created inefficiencies for them,

“As Ministry of Education, through our Technology Unit, we tried to establish an information exchange agreement with DEM, but it has not been possible […] We are awaiting the results of the agreement between FONASA and DEM, so that with that same agreement, we can adopt the same user number and not have to give people different numbers, one for education, one for health, but that instead they just have one number, and with that, we can be able to follow up and know what benefits they have in health, etc.” (August 24, 2015).

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And the same staff member from the Ministry of Education noted how a more integrated approach to an immigration policy is needed, as currently there are far too many issues created by a failure to work in a coordinated fashion,

“[Through participating in the Technical Council] we seek to update the regulations and to make visible the problems of a regulation that gives obsolete indications, that do not provide solutions to all the red tape that people have to deal with. Because first, we [Ministry of Education] created our regulations without taking into account DEM, and so we give deadlines which are unrealistic. We need to improve the language so that people can carry out procedures more easily, we need to connect with all the relevant institutions” (Interview August 24, 2015).

DEM personnel also lamented that there was no initial concerted strategy and that ministries went ahead and devised their own solutions. A participant noted for example,

“And so the result in [immigration] is what each different ministry has understood what they have to do with respect to immigration, how each interprets it based on their own prejudices, based on their own views, there is no common story by the state about what immigration should be” (Interview August 27, 2015).

Another issue caused by the lack of an integrated, coordinated approach is that central directives (such as the directives) take a long time to reach first-line bureaucrats. Several participants pointed to Chile’s high level of centralization as partially responsible for poor implementation of policies in the periphery areas. Even something as key for the Bachelet government as Presidential Directive 9 was not well known by first-line personnel, thus many of the ministries’ efforts involved educating and informing their own personnel. For the

Ministry of Health, even with the existence of the directive, it is not easy, policies do not reach front-line personnel,

“With respect to health, in 2008 the [instruction to provide primary care to immigration children] was sent out, but no training took place because of the change in government, so no

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one ever knew how far it went. We just completed an audit this year in the areas we prioritize, the ones with stronger presence of immigrants, and it was the case, in the surveying of urgency care centres, which are where we find the most egregious cases of discrimination, most of them didn’t have training, they were not aware of the norms, they didn’t have written instructions” (Interview September 1, 2015).

This vagueness or lack of central direction leaves room for officials to introduce their own criteria or prejudices when dealing with immigrants. It is not uncommon for immigrants to be turned away from health centers, educational establishments or other government services by bureaucrats who apply personal criteria and give a different treatment to immigrants.

Policy-makers in ministries have found that first-line personnel exercise a great deal of discretion in deciding to extend services to immigrants. In order to eliminate such latitudes and ensure all immigrants receive the services they have a right to access, ministries engage in training of their own personnel.

In general, participants recognize the Chilean state still needs to modernize its immigration policies, both at the level in which they are created and implemented, and this task of updating such policies is considered by them a technical issue, rather than a social one. This does not mean that they knowingly want to disguise immigration policy as something else or that they want to deceive in order to have their policies accepted by others. Rather, as mentioned, their primary concern is not immigration policy, but to efficiently reach a population, immigrants, which the state is unable to reach.

3.3.2 Second frame: leveling the field for everyone

A second frame that is used by state actors revolves around the idea of equality of opportunity. The move away from a political conception of immigration policy to a more

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technical one can also be seen in the fact that actors have a strong bias against creating specific programs and services for targeting immigrants only. In other words, there is suspicion that giving special treatment to immigrants could be beneficial for both immigrants and the Chilean population in general. Rather, as expressed by both the majority of bureaucrats and some members of civil society, except under special circumstances, immigrants do not need special treatment. This means more than encouraging illegal immigration to Chile, or encouraging people to deceive immigration authorities (for example by saying the purpose of travel is tourism but the real intention is employment). Rather, this reflects a preoccupation that the state could create a class or group of residents who will never obtain equality of opportunity or of conditions on a par with Chilean citizens. Therefore, actors believe the state has a role in avoiding the creation of these groups. As expressed by one participant, the lack of equality of access to social rights can create an immigrant society with different living conditions than those of the local population,

“And this can lead to conflict, which is already happening in the north more than in Santiago, the phenomenon is more visible for example in Antofagasta, housing is insufficient, people live in very precarious campsites, there is much vulnerability, and this produces conflict […] we know what happens in Europe, in the US, where migrants arrive without any livable conditions and thus become second or third class citizens” (Interview August 19, 2015).

This preoccupation with creating a separate, more precarious, resident status, is illustrated by the different stances that participants and their ministries, take on the issue of how to reach non-nationals. Some ministries are very careful not to treat immigrants as a special group deserving of special policies. For instance, a staff member from the Ministry of Education explained for the ministry the priority is not to grant immigrant’s access to education per se, but rather to deal with the challenges to inclusion. Immigration is overseen by an office created to

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deal with matters of exclusion, that is, relevant to all the children and youth who for causes of ethnic origin, native language, gender identity, etc., are excluded from fully exercising their right to education. In this view, immigrant children and youth are also part of those who tend to be excluded. For those working within the ministry, “the definition of inclusion is much broader than the sole topic of immigration” (Interview August 24, 2015). And thus immigration is not seen as a political matter, but rather as a technical one because the role of those working in the ministry on matters of exclusion becomes a more technical task not of whether how to ensure the right to education of these marginalized groups, but rather, how are these groups to be included in educational institutions, how their socio-cultural and linguistic characteristics are recognized by the institutions, how their country of provenance is also recognized by the institutions. In other words, how can educational establishments better serve the diversity of their populations.

In the area of health, it is possible to see a similar approach. A staff member describes the ministry’s priority as that of “eliminating barriers to health access.” She points out everyone, nationals and immigrants as well, have issues and barriers in terms of accessing health services, however, the issues are more pronounced for immigrants. This can apply to either immigrants with or without proper authorization to be in the country, although more measures are needed for those without proper authorization, who are the ones who tend to face the greater barriers.

In general, the ministry’ priority is for people to be covered by the health system. The ministry’s own mandate is more progressive than current legislation, since the normative is to ensure everyone in Chile receives health attention, regardless of their immigration status. Moreover, the measures that have been taken by the Ministry of Health with respect to the immigrant

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population in Chile are not the result of isolated efforts without background to assist the immigrant population. Rather, they are the result of a long tradition by the Chilean Ministry of

Health of delivering strong policies in the areas of infant and maternal health for example.

We can see a similar framing in the area of housing. In general, the Ministry of Housing is concerned with giving attention to families living in precarious dwellings, and the mandate to assist the immigrant population becomes absorbed under the broader mandate of removing access to barriers. As explained in Chapter 2, the Ministry has eliminated the five-year waiting period as requisite to apply for a housing subsidy (be it a purchasing, building or renting subsidy) for non-nationals. Regarding the change in policy, a staff member reflects how the change ensures the removal of barriers and ensure equality of conditions for nationals and non- nationals:

“What exists in Chile is a dwelling deficit, also for nationals, therefore the idea is to equate the conditions so that they can access benefits in the same way that a Chilean, and that is why the restrictions was eliminated, that limited access […] more information [is needed], because here we don’t have positive discrimination, because positive discrimination can create rejection, so the idea is to keep the equality of opportunity discourse” (Interview August 19, 2015).

The Ministry is much of the view that immigrants are another vulnerable population and their management within the ministry should be the same as other groups needing inclusion. We can see how this agenda is illustrated by the ministry’s Inclusion Agenda 2015-

2018 (Ministry of Housing 2015a). The agenda has identified five groups to be targeted as part of their efforts to make housing policies more inclusive: indigenous peoples, elderly population, children, people with disabilities, and immigrants. The ministry’s 2015 report of activities discusses immigrants as part of this inclusion agenda and states that in order to improve this group’s quality of life, the ministry has achieved “eliminating access barrier to dwelling

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subsidies for immigrant population in Chile,” in addition to carrying out various activities aimed at sensitizing first-line officers in regards to cultural diversity and the conditions of vulnerable immigrants in Chile (Ministry of Housing, 2015). All this however while paying special attention not to create additional special policies that could be interpreted as positive discrimination.

When asked if there were special programs for immigrants created by the Ministry of

Social Development, an official within the ministry noted that not only they had not identified a vulnerable group, but that they were skeptical of creating programs of that nature (Interview

August 10, 2015). For the ministry, once immigrants have obtained their national identification

(for which obtaining permanent resident status is first necessary), they can access programs on a par with nationals. Once more, the preoccupation with providing incentives to illegal immigration was evident, as the official noted,

“Since our goal is for people to obtain regular status, we don’t want to generate programs for the irregular population, […] My preference is to put the effort in regularizing all those without regular status, and not create programs that consolidate irregularity, and I prefer that [DEM] be the one that makes those efforts” (Interview August 10, 2015).

In this sense, DEM is committed to ensuring there are efficient mechanisms for providing immigrants with the proper residence and work authorizations, as a crucial step in achieving the goal of equality of opportunity. As expressed by various participants, one of the principal obstacles that immigrants encounter is that they cannot obtain the services they need, or they end up being employed irregularly or illegally, or they are subject to abuses from employers, landlords, etc., because they do not possess the proper authorizations to live and/or work in Chile. In this sense, the new temporary visa for reasons of employment has been a

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crucial mechanism in ensuring that immigrants have equality of opportunity (Chapter 2). As described by a staff member from the Department of Immigration, the goal of the program is to eliminate the possibility of unfair competition, which happens when immigrants are irregular and employers can essential undercut domestic labour by hiring “cheaper” immigrants; thus, the new visa program is an excellent way to ensure fair competition between national and immigrant labour (Interview August 27, 2015). The program, which has been described as a mechanism for leveling the field by government officials, presents a good example of how the bureaucracy has depoliticized immigration policies; what is essentially a visa program with a pathway to permanent settlement is described as a program which ensures fair labour competition.

In sum, participants are of the view that, except in very specific instances, the state’s main role should be to remove barriers in the access to social services, and not to create special programs for immigrants, particularly if these programs could be taken as incentives for illegal immigration. Special treatment for immigrants can be perceived as a concession or favoritism.

Instead, the policies adopted for the benefit of immigrants are not framed as immigration policies solely, but rather as efforts to remove barriers for vulnerable populations.

3.4 Conclusion

This chapter has explained how actors in Chile’s central government have been able to transform the institutional landscape and introduce policies which promote immigrants’ social rights, which is something not only not considered by DL 1094, but made quite challenging as a result of legislation that is over 40 years old. It has been argued policy change has been made

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possible thanks to the adoption of instruments, namely presidential directives, which on the one hand, have transformed DEM’s role in creating immigration policy and on the other, have carved out a role for new actors that did not previously have formal powers over immigration policy. The directives have given actors the tools to “work around” the constraining framework imposed by DL 1094. However, actors are careful to present policies in a way that does not create incentives to what they consider to be irregular immigration. Fearing that special treatment for immigrants can be perceived as a concession or favoritism, the policies adopted for the benefit of immigrants are not framed as immigration policies solely, but rather as efforts to remove barriers for vulnerable populations. It should be noted actors are not trying to deceive or that their work should be characterized as deception; rather, for actors, such policies are part of a broader set of policies aimed at removing obstacles that people may encounter when accessing state services.

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4. Municipal governments and immigration: a bottom-up approach to policy

This chapter will engage with the topic of how and why municipal governments in Chile have become involved in creating immigration policy. As will be argued here, the absence of formal policies generated at the central level and directed towards other levels of government

(in this case the municipal level), creates opportunities for the emergence of new actors and institutions involved in immigration policy as well new ways to conceptualize immigration.

Chapter 3 argued policy actors in central governments are concerned with reducing barriers to accessing services and benefits for immigrants. However, as this chapter will discuss, municipal authorities are much closer to the “day-to-day” life of people, immigrants included, and so they have no choice but to create policies that fill in the gap where central government has yet to step in. Municipal actors, thus, create institutions and policies from a bottom-up approach.

This chapter will describe how municipal actors have become involved in immigration policy, through the creation of new apparatuses, or Immigration Policy Units (IPUs) at the local level. These new apparatuses and the actors involved in them create and implement policies aimed at improving the social conditions of immigrants, particularly of those in the most precarious situations, while at the same time creating the conditions for their acceptance into the receiving society. In other words, IPUs engage simultaneously in policies that target immigrants and Chileans in general. The existence of IPUs can be traced back to the rapid increase in immigration that some municipalities have experienced in recent years. However, in addition to this trend of rapid increases in migration, institutional factors are at play which lead

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municipal governments to create these policy units. Such factors are the location of municipal governments as the first level of contact with the state for immigrants, the decentralization of community development policies in Chile, and the absence of immigration policies from central government. As municipal authorities realize increases in immigration create new and different needs for community residents, and without national planning or policies aimed at resolving such needs, local governments adopt a bottom-up approach for policy-making. Lacking the authority to directly apply or alter immigration legislation, municipalities subsume immigration policies under their mandates, however not always identifying it as immigration policy, but as social policy, or more precisely, as a subset of community development policies.

4.1 Populating the municipal Immigrant Policy Units: venue and actors

4.1.1 Municipalities and immigrants: first contact with the state

Municipalities becoming involved in immigration policy in Chile is in part a direct consequence of the roles that municipal governments play. Local governments are quite proximate to the daily lives of residents of a community. In this sense, there are issues at the municipal level which intersect with immigration policy, for the reason that immigrants, regardless of their migratory status, become residents and neighbors in a local community, and thus the local level of government is a usual way in which they approach the state. As a first level of government for residents of a community, municipal governments have to provide services in an efficient manner. Vial Cossani (2016, 110) lists the functions exclusive of Chilean municipal governments, “to elaborate the Community Development Plan (PLADECO) and the

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Regulatory Community Plan (PRC), advance community development, being responsible for street cleaning and embellishment, and to apply regulations in the areas of transportation, traffic, construction and urbanization” (emphasis added). Municipalities also have other functions for which they share responsibility with other levels of government, which include

“transportation, health, education, protection of the environment, culture, sports, employment development, business development, urbanization, security, roads, among others.”

During the 1980s, an important number of functions were transferred from the central government to the municipalities, initially health and education, in an effort by Pinochet’s authoritarian government to decrease the size and involvement of central government and promote privatization of services (Siavelis, Valenzuela Van Treek, and Martinelly 2002); however, while the competencies were transferred, adequate funding for the provision of these services was not (Eaton 2004). Particularly for shared responsibilities, municipalities continue to be subordinate to higher levels of government, and for this reason, “in practice, municipal autonomy has become a straitjacket, due to the strong dependency on central government, from an administrative and fiscal point of view” (Vial Cossani 2016, 110). It is important to note that in spite of the administrative (and also legislative) constraints, municipal governments have found ways to create immigration policy (as will be further illustrated in this chapter). Thus,

Chilean municipalities find themselves in an odd position in regards to immigration policy, working within certain constraints, but also having tools at their disposal. The head of the

Quilicura IPU notes the kinds of constraints imposed by higher levels of government, and how local actors do not accept such constraints and find ways to work around them,

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“In general [municipalities working on immigration] produces friction with the state and the regional governments. I can speak of Quilicura. In the Community of Quilicura almost all of our [immigrant] children, if not all of them, are registered in the school system, day nursery, kindergarten, elementary school […]. But here comes September 30, and we then have to plea and fight with the regional [authority], deal with all the rules which say that they have to be held back, that we have to expel them from the school, and on top of that sanctions the school because they’ve been saying all year long not to accept immigrants. So there’s friction, there’s a dispute between the local and the state and regional. Why? Because there’s no [immigration] policy in Chile, there’s an outdated law. So when we are able to join those worlds we are going to be able to carry out a more integrated work, with the municipality, region, state” (Cabrera, 2013).1

Similarly, a former staff member in the Ministry of Health reflects on how municipalities have managed to create immigration policy in spite of limitations:

“Ministries are the ones in charge of establishing policy directives, municipalities of carrying them out at the territorial level […] for example when I was in Health, we developed a directive for children and pregnant women, but if the directive is not applied at the level of doctors’ offices and at the territorial level then it’s useless because it stays up there and is not put to use for people. So, it’s very important that when you do public policy work in a ministry that it have a practical side for the territories, and the municipalities are the ones that can do that. But on the other hand, municipalities cannot do things beyond the directive, because directives establish the limit. [Municipalities] can organize a bunch of things at the territorial level, like it has been done by Quilicura, Santiago, but in the end the directive with respect to immigration and social policy is established by the ministries. These are two planes which are trying to better coexist, but they haven’t done so very well, because this phenomenon was approached only recently” (Interview August 10, 2015)

In addition, municipal governments in Chile play an important role in the distribution of government benefits targeting the poorest households and those in a vulnerable socio- economic situation (Correa, Cubides and Bortolotto 2011). Municipalities are in charge of

1 While the normative established by the Department of Immigration and Ministry of Education (Chapter 2) requires that schools enrol children regardless of their immigration category (and that of their parents), when a student has no residence permit, then schools can only enrol them by providing a temporary identification number. However, a student may remain in school with such temporary number throughout the whole academic year (sometimes even longer) for a number of reasons. The issue is that for the school to issue a certificate of completion for the academic year, the student must at the time be in possession of a permanent identification number (which can only be obtained once a residence visa or permit has been issued).

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surveying households, collecting data, and arranging for payment of benefits (Nickson 1995).

Thus, for many immigrants, not unlike for Chileans, approaching their municipal governments is the first step in obtaining state benefits. In this way, immigrants’ first encounter with the

Chilean state is through their municipal government. Because municipal authorities deal with everyday life situations, this level of government is the most accessed institution “…after family, fellow countrymen, neighbors, the municipality is the first public service that immigrants approach when they need help with a problem” (Matus, Cortez-Monry, and

Hermansen 2012). Local actors and participants confirm this dynamic, as expressed by an IPU staff member, “municipalities are the firsts that encounter the problems […] they have to take over […] municipalities see the daily issues, intrafamily violence at homes, the evictions, the fires, poverty, etc.” (Interview August 17, 2015). In their view, municipal offices are the ones which first realize when an immigrant is facing challenges that put them at risk. Chilean immigration scholars Thayer and Duran (2015, 137) have also pointed out that it is at the local level where the issue of immigrants’ rights is mostly visible, because “the issue of recognition is largely played out in local spaces, because in them emerges all the microphysics of rejection to immigrants which limits their recognition.”

A second reason why the municipal level is the first level of contact has to do with the absence of public policies at the central level, as municipalities have stepped up to fill this gap.

The view that municipal governments provide services that the central government is not equipped to do (and so it downloads these responsibilities to the municipalities) is shared by local actors and participants. In regard to how municipalities have taken a lead role, a staff member in the Ministry of Social Development notes that,

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“Between 2010 and 2014, the Piñera government, practically there was no sectorial work done, I was in Health and they took apart everything we were doing. I was told the work that we were doing was irrelevant, has no importance. Not everything we had accomplished was done away with, but it was put on hold. But the municipalities continued working, because they don’t depend on the political authority of the moment, they depend on their political authorities. They advanced a good deal in those four years. Now the state resumes this with interest, but the municipalities have their progress, and so we are trying to catch up.” (Interview August 10, 2015).

4.1.2 Municipal politics and voting rights of immigrants:

Another influencing factor of immigration policy at the municipal level is the fact that non- citizens have the right to vote in Chile. As will be argued in this section, municipal politics is open to immigrants as a voter group, thus, local politicians are more receptive to catering to their needs, which sometimes gets reflected in support for the establishment of municipal IPUs.

Globally, the franchise of non-citizens tends to be limited to local elections, and even in such instances, the subnational units such as provinces or municipalities can apply different criteria, allowing non-citizens to vote in some units but not others.2 Chile is one of only four countries which allows non-citizen voting for national elections, Malawi, New Zealand and Uruguay being the other three (Earnest 2008). The franchise of non-citizens was established in Chile by the 1980 Constitution (Jimenez Larrain 1989), which gave this group the right to vote in elections and referendums at the municipal, regional and national level (Echeverria 2015). To vote, a non-citizen must meet three requirements: be 18 years of age, have not served longer than three years for a criminal offense, and have held permanent resident status during the

2 For example, in Switzerland, because political rights are regulated at the canton level, the Jura and Neuchâtel cantons allow non-citizen residents to vote, but no other cantons do (Office fédéral de la statistique, 2019).

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previous five years.3 The first two conditions apply to Chilean citizens as well, whereas the third is required of non-citizens only. In addition, unlike citizens, non-citizens do not have the right to be elected into office or to create or participate in a political party.4

In Chile, as in other advanced democracies, electoral participation is on the decline. As table 4.1 shows, electoral participation in Chile has declined below 50 percent across all jurisdictions since the first elections in 1992 after the return to democracy. The decline, however, is more pronounced at the municipal level; while participation levels in the last two presidential and legislative elections have remained stable, in municipal elections it has dropped from 45 percent in 2012 to 36 percent in 2016.

Table 4.1 : Percentage of participating voters in relation to the voting age population 1992- 1993 2008-2009 2012-2013 2016 2017 Municipal 79% 58% 45% 36% n/a Legislative 82% 59% 51% n/a 47% Presidential 82% 59% 47%* n/a 47% * The average of the first and second round, 51% and 43% respectively. Source: Adaptation from PNUD (2016), SERVEL (2017a).

A measure meant to counter declining electoral participation was the electoral reform of

2012, which significantly lowered voting costs for citizens and non-citizens alike. In 2012

3 Article 14 of the Constitution does not state that non-citizens must have held permanent resident status for at least 5 years prior to being eligible to vote, only that foreigners must have been “resident neighbors for more than 5 years in Chile” (“avecindados por mas de 5 años en Chile”). However, the Department of Immigration has interpreted this to mean having had permanent resident status for at least 5 years, and only when a foreigner meets this requirement his or her information is reported to the electoral service, SERVEL, for automatic registration in the electoral roll. Some immigrant organizations, most notably the National Immigrants Association (Cooordinadora Nacional de Inmigrantes), disagree with this interpretation of the term “avecindado.” The association’s leadership has disputed this and in six individual cases has persuaded SERVEL that the immigrants in question do meet the “avecinamiento” requirement. 4 A naturalized citizen must wait a period of 5 years to be eligible to be elected into office.

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legislation was modified, changing the voters’ registry from voluntary to automatic.5 This change alone increased the number of potential voters from 8.5 million to 13.3 million (Navia and Del Pozo, 2012). The reform also made the switch from mandatory to voluntary voting.

Before this, a person would register to vote only if he or she wanted to participate in the election, but once registered, was obligated to cast a ballot (or be subject to a fine). The new legislation considerably lowers these costs, as a person is automatically registered in the voters’ lists once they meet the requirements (minimum age for citizens or minimum age and time of residence for non-citizens), plus they do not face sanctions if they do not wish to vote.

However, in spite of the 2012 reforms, there was no significant change in the participation patterns of the Chilean electorate at the national level between 2013 and 2017 (as referenced in table 4.1). This trend is however, reversed for non-Chilean voters (Table 4.2), whose electoral participation increased from 25 percent in 2013, to 36 percent in 2017. While data on municipal elections is not disaggregated by nationality of voters, national data suggests the reforms had a positive effect in the turnout of non-Chilean voters.

Table 4.2: Electoral participation of Chilean vs non-Chilean voters 2013-2017* Citizenship 2013 2017 Chilean 49 47 Non-Chilean 25 36 *As percentage of eligible voters Sources: SERVEL 2013, SERVEL 2017b.

In light of these patterns, immigrants have become a desirable voting group at the municipal level. First, the 2012 reforms benefit those groups who are historically

5 Chile’s electoral service, SERVEL, obtains the list of voters from data provided by the Civil Registry in the case of citizens, and from the Department of Immigration in the case of non-citizens, making the registration of eligible voters automatic.

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disenfranchised or have more barriers to exercise their voting rights, such as immigrants, by making electoral participating less onerous. Second, while non-citizen voters represent a small share of eligible voters at the national level (1.9 percent), they represent a larger share in some municipalities. For the 2016 municipal elections the potential number of non-citizen voters almost reached a quarter million (238,716) and 68 percent of these voters were found in the

Santiago Metropolitan Region (AMUCH 2016). Table 4.3, which provides data on the 10 communities with the largest numbers of potential non-citizen voters for 2016, illustrates the relevance immigrants have acquired in some municipalities, mainly in the metropolitan region, particularly if we consider some municipal elections have been extremely contested and won by only a few thousand votes.

Table 4.3: Top 10 municipalities with non-citizen voters in 2016 Municipality Total Potential Total potential non- Percentage non- Voters citizen voters citizen voters Santiago 302,535 33098 10.9 Iquique 157,867 13,525 8.56 Las condes 246,481 23495 7.8 Arica 168,409 7,498 4.45 Providencia 162,963 11574 3.8 Antofagasta 260,299 8,730 3.35 Recoleta 140,760 7882 2.6 Independencia 77,520 7377 2.4 Vitacura 84,393 6958 2.3 Nunoa 182,372 6634 2.2 Total 1,783,599 126,771 - Sources: AMUCH 2016, SERVEL 2016.

Given the scenario just described, it is no surprise that candidates in municipal elections have begun courting the immigrant vote. The geographical distribution of immigrants makes their issues more difficult to ignore from the point of view of those seeking their vote in municipal elections than politicians seeking votes in national elections. As seen from the data on

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municipalities with the largest concentrations of immigrants, their vote has become important, particularly as it can be decisive in municipalities with electoral competition. A clear example of the above was the connection established between mayoral and city councillor candidates and immigrant organizations during the 2016 municipal elections. The National Immigrants

Association (Coordinadora Nacional de Inmigrantes), an umbrella organization that groups more than 40 immigrant organizations in Chile, organized to promote voting amongst eligible immigrants. For this purpose, the organization’s leadership held numerous meetings with candidates prior to the election. In these meetings, the organization approached candidates with certain demands and explained the number of problems faced by immigrants in their respective communities. At the end of this process, the association presented to candidates a proposal which included certain demands for candidates, should they win the election, they would support policies and actions commit to supporting the activities and initiatives therein contained in favour of the immigrant population nationwide in the five following areas: better access to social services, integration and social harmony, housing, regularization, and the right to work, among others. In total, 84 candidates signed the pledge: 15 mayoral candidates and 69 city council candidates. Of the 15 mayoral, 8 were in the Santiago Metropolitan Region. The process culminated in a public event in Santiago, which was attended by mayoral and city council hopefuls, as well as a number of incumbents.

In addition to reaching out to immigrant organizations, listening to their petitions, and formally and publicly acknowledging their importance, some candidates also made specific references to creating an IPU in the municipality of their candidacy. For example, Helia Molina,

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runner up in the mayoral race in the municipality of Ñuñoa, committed to opening an IPU in the community, noting that,

“It’s been drawn to my attention that in Ñuñoa there are 4 thousand immigrants, this is not a minor topic, where the reality is diverse. I have seen, in door-to-door visits, immigrants living in overcrowded conditions or as recently arrived, but others have adapted and have jobs […] The situation of the community is uncertain, because Ñuñoa doesn’t have any institutionality that allows to register, to know the access to schools or health for the immigrant population. Thus my commitment with Ñuñoa is to generate the institutionality, meaning to create an office for immigrants, to engage in a community-level immigration policy and to know the reality of immigrant neighbors that we don’t know today.” (Rizik 2016).

In the municipality of Recoleta the issue of immigrants in the community was also present for the two leading candidates, incumbent Daniel Jadue (Communist Party) and

Marcelo Teuber (UDI). Both candidates indicated their commitment to working to improve housing conditions for immigrants, particularly overcrowding. Teuber held meetings with immigrants in Recoleta, particularly Peruvian immigrants, to obtain their input on the matter, and proposed working with landlords to force them to make improvements to their properties.

Incumbent mayor Jadue also noted the advances his government had made in this regard;

Jadue had met with immigrants in the community during the 2012 campaigned, and once elected, quickly moved to establish an IPU in Recoleta. In his 2016 acceptance speech, Jadue made a point to thank immigrants who supported his re-election campaign.

Former mayor of the Santiago Municipality and runner-up in the 2012 election, Carolina

Toha, focused primarily on the issue of overcrowded housing, and how during her term as mayor prior to the election, several measures had been taken to ensure that immigrants as well as other neighbors were not being taken advantage of by landlords renting out inhabitable buildings and overcrowding with tenants. Former mayor and also runner up to Providencia,

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Josefa Errazuriz, had very detailed proposals for immigrant residents of the community in her program of government in 2016.

In general, during the 2016 municipal elections, particularly in the case of regions with largest concentrations of immigrants, the Santiago Metropolitan Region and the Antofagasta

Region, candidates were not antagonistic to immigrants and did not use discourses or images that would portray immigrants’ interests as conflicting with the interests of nationals.

Candidates resorted instead to discourses of plurality and integration for all residents of the community in their proposals. An organizing member of an immigrant organization noted that

“candidates didn’t seek out an anti-immigrant campaign, that didn’t take place, even

Alessandri [UDI] spoke about Santiago for everyone, including the population of immigrants”

(Interview October 8, 2017). For example, in his acceptance speech, elected mayor Felipe

Alessandri expressed the following “I want to invite you to build a Santiago of everyone, multicultural and multiracial. Any person living in this Community is of equal dignity, and during my administration he or she will be treated with that vision. Immigrants will be welcome and respected, if they want to contribute to a Community that is diverse, multicultural and integrating” (Municipalidad de Santiago, 2016).

4.2 Policy origins and development: immigration policy as community development

Although immigration policy falls under the mandate of the Ministry of Interior, as explained in Chapter 2, we find that in Chile, from about 2010 and onwards, municipal governments have clearly become involved in not just the delivery of services targeting

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immigrants specifically, but also in articulating local immigration policies which aim to guide things such as the delivery of services and the integration of immigrants into their local communities of reception, and by extension into Chilean society and culture.

4.2.1 First response: dealing with crises and externalities

The first Immigration Policy Units, IPUs, were created around 2010 (Table 4.5), as a response to immediate needs of immigrants as well as in order to resolve conflicts between them and long-time (national) residents in the communities. In practice it can be difficult to classify an issue as only affecting one of the two groups, as an issue affecting an immigrant or groups of immigrants can also directly or indirectly affect nationals. There are issues that clearly only affect non-Chileans due to their migratory status: they may lack information (or perhaps worse, be misinformed) about benefits, services and rights that as non-citizens they can obtain (for example how to register a child in school, how to see a doctor, whether they qualify for a visa, whether they can vote, etc.); or they may face discrimination and abuse (at their place of employment, or by predatory landlords); or perhaps they are aware their migratory status does not entitle them to any supports, and they need assistance in first obtaining the proper status, and second, accessing any possible benefits.

However, as noted by actors at the municipal level, the arrival of immigrants can at times create conflict with long-time residents of a community. A common issue in this regard is for example overcrowded housing. When a person cannot provide proof of regular migratory situation, it is very difficult to rent housing, as many landlords refuse. The landlords that do rent to immigrants tend to increase rents, which in turn causes a problematic circle: immigrants try to cut costs by including more dwellers, and landlords know this and they will probably

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inflate the costs of rent in response to having many dwellers in one unit. Many immigrants have temporary or precarious employment and without a access to a steady income, they have more difficulties accessing affordable rents. Hence this situation causes precarious living conditions, where many people share an overcrowded unit, sharing common spaces, etc. In addition, housings tend to be old, and couple with overcrowding, there are fire hazards and other safety risks. The mayor of the Independencia municipality explained how municipal authorities have to solve issues such as overcrowded housing in order to avoid potential conflict with long-time residents:

“There is a cultural externality, that has to do with annoying noises, when they [immigrants] live in very small apartments, parties every night, and we have to resolve that, regardless of the nationality, we have to engage in intercultural dialogue, […] The second issue is garbage, there is difficulty in collecting it because of the conditions they live in, so we have to adapt, we are facing the issues” (Duran 2016).

The mayor of Estación Central shared a similar opinion,

“The issue of housing is one encountered by an immigrant who earns a low wage, because they send remittances, and so they rent [housing] between many […] we notice that immigrants try to lower the cost, but that creates externalities, overcrowding, risk of electric fires.” (Delgado, 2016).

An important catalyst for the engagement of municipal governments in immigration policy was the 2010 earthquake that struck many Chilean cities including the country’s capital on February 27, 2010. While the earthquake affected residents in general, it was especially devastating for immigrants, who as has been mentioned, many times have to live in unsafe and overcrowded housing or have precarious employment. Organizations of civil society, including the Catholic Chilean Migration Institute (Instituto Católico Chileno de Migración, or INCAMI), the

Jesuit Immigrant Service (Servicio Jesuita Migrante, or SJM), Amnesty International and others,

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approached municipal authorities to draw attention to the dire circumstances some immigrants were in after the earthquake. They organized a task force for aiding immigrant families. The group obtained a census of immigrant families in need of support after losing their homes to the earthquake; these families at first were not receiving any supports or subsidies from municipalities. Immigrants were turned away by municipal authorities and told to seek help with organizations of civil society or their own embassies or consulates (Olea, 2010). The census revealed the majority of affected immigrants lived in the Santiago municipality, but they were also present in other municipalities. A total of 980 cases of immigrants who had lost access to housing due to the earthquake, distributed as illustrated in Table 4.4.

Table 4.4: Immigrant families in Metropolitan Region affected by earthquake Municipality Percentage of immigrant families in need of housing Santiago 43.5 Estación central 17.9 Independencia 15.9 Recoleta 11.7 Quinta Normal 4.3 Others 6.7 Source: Olea (2010).

In some municipalities, the task force was able to persuade municipal authorities to issue assistance and housing subsidies to immigrant families, although these tended to be reserved for immigrants who could produce a valid residence permit. The group as also able to enlist the help of some consulates, such as Peru, Colombia and Ecuador, which delivered subsidies for renters, basic necessity items, and assisted in repatriating some of their citizens.

Members of the taskforce were also able to hold meetings with municipal authorities in the municipalities of Santiago, Estación Central, Independencia and Recoleta. Thanks to these efforts, the authorities in Santiago, Estación Central and Independencia undertook to counting

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immigrants in their census (which would allow them to access subsidies, shelters, etc.), and to evaluate the condition of buildings were immigrants resided.

Some organizations of civil society felt the lack of residence status was the main obstacle for immigrants affected by the earthquake in trying to rebuild their lives in Chile. Most notably, the Peruvian Refugees in Chile Committee6 (Comité de Refugiados Peruanos en Chile, CRPC) approached DEM authorities requesting special consideration be given to immigrants affected by the earthquake, so they were issued residence permits and could in turn access government subsidies (in addition to other benefits that come with a permit). However national immigration authorities never made a pronouncement on the subject. This is an example of how the central government did not provide assistance and left municipal governments to deal with issues on their own. When it came to assisting non-citizens affected by the earthquake, as noted by Olea

(2010, 268), “the Department of Immigration operates only as a visa-issuing agent, leaving the collaboration, integration and organization to non-government organizations.”

The earthquake made visible the situation of immigrants in Chile’s capital. It was at this point that IPUs began to be established in the municipalities, although their resources were scarce and activities much more limited. The case of the municipality of Quilicura is emblematic in this sense. This municipality has the largest concentration of Haiti nationals; it is estimated that 48% of Haitians in the Santiago Metropolitan Region live in Quilicura (Thayer 2014, 31).

After the 2010 earthquake in Haiti, the municipal government, realizing that Haitians were desperate to contact their families back home, set up an office with internet access and

6 The Peruvian Refugees in Chile Committee, PRCC, is an organization was established in the mid 90s by political refugees fleeing from political repression in Peru.

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telephones for international calls, all free of charge, so Haitian residents of Quilicura could communicate with their family members. This initiative was supported by mayor Juan Carrasco

(2008-current), who recruited Sister Yamile Cabrera to lead this effort, given her past experience working with immigrants (Ugarte 2013). A year prior to the earthquake in Haiti, volunteers from the INCAMI and the Metropolitan University of Education Sciences had been teaching

Spanish language courses to Haitian residents of the community, as part of a pilot project between INCAMI, the university, and the municipal government. The university assisted with

Spanish and French instructors, INCAMI contributed with logistical support, and the municipal government provided the physical space and payment for five professors. The head of the IPU has noted that at the beginning “Quilicura responded in an incipient way, with many mistakes, with cero resources, but with will, with great responsibility, we have been very responsible, we have tried to do very serious work” (Cabrera, 2013).

The IPU in the municipality of Santiago also had its beginnings with few personnel and resources. Former mayor Pablo Zalaquette (2008-2012) had had encounters with immigrant organizations from the time he was a candidate. During campaign, the issue of Peruvian nationals congregating in downtown Santiago in search of employment or a reunion place, was discussed by the main contenders. They agreed something had to be done about it, however there were no real solutions to the perceived problem. While on campaign Zalaquette made declarations against Peruvians (such as that they were a burden on government benefits), once he was elected, he held meetings with the Peruvian ambassador to search for solutions to improve the conditions of living of Peruvians settling down in Santiago. By early 2009, the recently elected mayor had held meetings with the Peruvian representatives, creating a task

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force. Later that year, the Zalaquett administration began working with representatives of

Peruvian vendors to relocate them. In 2010, the former Santiago mayor was supportive of creating an IPU. He put the initiative in charge of a social worker, who had a background working in health. She designed the first IPU in the municipality, then conceived as the

Immigrants’ Program (Programa de Migrantes). She noted that when putting the program together, there were no similar experiences, and so she studied models in other countries such as Spain and Canada (Rizik 2013).

4.2.2 Community development policies and immigrants

In an institutional context where the municipal level of governments is the first level of government for immigrants, and increasing political participation of immigrants thanks to voting rights, IPUs have begun to emerge and subsume the immigration portfolio under the community development mandate.

As shown in Table 4.5, virtually all established IPUs fall under the mandate of the

Directorate of Community Development (Dirección de Desarrollo Comunitario, or DIDECO).

According to the 1992 Municipalities Act, community development is an exclusive competency of municipal governments. In 1992, the law on municipal government was reformed, amidst demands from citizens, social movements, and grassroots organizations demanding more participation in municipal government affairs (Greaves 2007). After the end of the dictatorship period, the Concertación governments were constrained by a negotiated transition to democracy

(Chapter 1). However, one area where there was potential for altering the status quo and

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improving the quality of democracy was the municipal level of government.7 A number of reforms were adopted to ensure municipal governments would take into account society in governing, such as the election of mayors and members of city councils (which previously were appointed by the Regional Development Council).8 An important change in this respect was that municipal governments were required to create a community development unit, DIDECO, whose specific functions according to Article 22 of the Municipalities Act would be:

“Article 22: the unit in charge of community development shall have as specific functions: a) Provide advise to the mayor and council on the advancement of community development; b) Provide technical advice to community organizations, encourage their development and legalization, and promote their effective participation in municipal affairs; and, c) Put forward and execute, within its scope and whenever required, actions aimed to materialize activities related to public health, protection of the environment, education and culture, employment training, sports and recreation, employment advancement, fostering local productive activities, and tourism.”

Authors have emphasized how the role of DIDECOs has been to further participatory governance by empowering organizations from civil society, through imparting knowledge, providing resources, etc. (Greaves 2004, 2007; Read 2000). At their creation, DIDECOs were envisioned as an important vehicle to promote participation of society in local government affairs, as these units of municipal governments were conceived to be “most intimately familiar with social organizations in the community” (Read 2000, 126). However, a second and equally important function of DIDECOs is the administration of social programs aimed at community

7 Greaves (2004, 2007) argues in the end such concessions to improve the quality of democracy at the municipal level were limited, as national political leaders of the Concertación did not want to alter the status quo upon which the pacted transition was made possible. In the end, the new participatory mechanisms in local governance suffered from municipal officials’ subordination to central government for policy guidance, resources, and agenda setting. 8 In Chile, Regional Development Councils are bodies that together with the Regional Intendent, make up the regional governments.

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development, primarily by mitigating poverty or the vulnerability of certain groups in the population, such as the elderly, women, youth and children, persons with disabilities, indigenous populations, and sexual minorities. As noted by Kubal (2001, 252), DIDECOs are very important in the agenda of a municipal government; these units can be characterized as

“the ‘face of the mayor’ in the municipality,” given their position to distribute resources, especially to the poor and working class.

It is within this mandate of community development that municipal authorities have integrated the management of immigration policy into the structure of DIDECOs. As such,

DIDECOs have created specific Immigration Policy Units, to engage the immigrant population while at the same time changing the perception of Chilean population with regards to immigrants. These units follow the same logic of community development. In this sense, immigrants are conceived as another community group which requires empowerment and/or social assistance, same as the other groups previously mentioned. The definition of what groups

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Table 4.5: Municipalities with Immigration Policy Units Municipality IPU Name Region Year Created Reports to Staff PRs Issued to % PRs issued Municipality* to Region Arica Diversity, Inclusion, Refugees, and Migrants Office Arica 2015 DIDECO 4 10234 97.2 Antofagasta Diversity House Social Program Antofagasta 2015 DIDECO 4 22950 56.5 Calama Municipal Office of Tolerance, Respect, and Anti- Antofagasta 2015?2009? DIDECO 4 14761 36.3 Discrimination San Antonio Diversity, Inclusion, and Anti-Discrimination Program Valparaíso 2015 DIDECO n/a 495 4.5 El Quisco Inclusion and Diversity Office Valparaíso 2016 DIDECO 2 92 0.8 Santiago Migrants Office Metropolitan 2010 DIDECO 3 51193 24.7 Cerrillos Intersectorial Working Group Metropolitan n/a n/a n/a 1927 0.9 Conchali Social Inclusion Office Metropolitan 2014 DIDECO 1 3767 1.8 Estación Convivencia and Social Integration Office Metropolitan 2015 DIDECO 7 8893 4.3 Central Huechuraba Citizens’s Rights Community Office Metropolitan 2013 DIDECO 6 2123 1.0 Independencia Migration and Interculturality Office Metropolitan 2015 DIDECO n/a 11716 5.7 La Cisterna Migration and Interculturality Office Metropolitan 2015 DIDECO 1 1497 0.7 La Pintana Immigrant Support Program Metropolitan 2011/2012? DIDECO 3 656 0.3 La Reina Interculturality Program Metropolitan 2016 DIDECO 2 2499 1.2 Lo Prado Migration Unit Metropolitan n/a DIDECO 1 2714 1.3 Maipu Migration Unit, Diversity Office Metropolitan 2014 DIDECO n/a 4386 2.1 Penalolen Migrants Office, Inclusion and Anti-Discrimination Unit Metropolitan 2014 Directorate of 2 4806 2.3 Community & Family Providencia Diversity and Anti-Discrimination Department Metropolitan 2012-2016 DIDECO 6 11111 5.4 Pudahuel Support for Migrants Project: First Welcome Metropolitan 2016 DIDECO 3 2134 1.0 Quilicura Municipal Office for Migrants and Refugees Metropolitan 2010 DIDECO 5 5180 2.5 Recoleta Migrants and Refugees Program, Gender and Inclusion Metropolitan 2013 DIDECO 2 11633 5.6 Working Group San Ramon Human Rights Deference and Integration Office Metropolitan n/a DIDECO n/a 2193 1.1 San Bernardo Municipal Migration Office Metropolitan n/a DIDECO 2 786 0.4 * Measured by Permanent Residents 2005-2016 Sources: AMUCH (2016), DEM (2016b), personal interviews.

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constitute the community has expanded to now include immigrants, regardless of their immigration status in the country (more on this in the next section). A survey conducted by the

Association of Chilean Municipalities (Asociación de Municipalidades de Chile, AMUCH) found there were 23 IPUs in the country,91 which are listed in Table 4.5. While these 23 municipalities are a small portion of the total number of municipalities in the country (345), they do represent the communities with the largest populations of immigrants in the country; together, they account for 54.7 percent of permanent residency permits issued during the 2005-2016 period.102

Out of the 23 municipalities with IPUs, 16 provided information on the number of staff employed by them. As the table indicates, the number of actors at the municipal level dedicated to creating and implementing immigration policy is not extensive. This group includes the individuals who staff IPUs, who can in turn be full-time permanent staff, or others such as interns. In addition to them, politicians, specifically mayors who have expressed and demonstrated interest in attending to the specific needs of immigrant residents in their communities, are also relevant policy actors at the local level. The origins and specific functions of IPUs will be discussed in more detail in section 2 in this chapter, however it should be mentioned at this point that the individuals who staff these units at the municipal level come from a mixture of backgrounds: some have historic connections to immigration, being immigrants themselves, and having worked with the immigrant population in Chile at some

91 The survey was conducted in the five regions of the country that concentrate 88.5% of the immigrant population (Metropolitan Region, Antofagasta, Tarapacá, Valparaíso, and Arica & Parinacota), which together comprised 110 municipalities. However, it was only possible to obtain responses from 91 of them. 102 Number of Permanent Residences issued in a given period provides an approximation only of how many immigrants have settled in a municipality, since not all of them have permanent resident status.

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point in their professional careers, as volunteers or members of immigrant organizations. In this sense this is similar to what occurs in central government, where some actors have been recruited from organizations of civil society to use their expertise on the subject to work now for the state. Others come from technical fields such as law, health, social work, education, psychology or sociology, and many of them have experience working with populations in vulnerable situations. Many units also rely on interns who are completing studies or training in these fields.

In addition, not unlike what takes place in central government, many of the actors in the municipalities have links with organizations of civil society, having worked for them at times, and at times being recruited from these organizations to work in local government. Having this knowledge and experience places them in an ideal position to begin a project of delivering programs and supports for immigrants at the local level, since they already know where are the problems that immigrants face (labour, housing, education, health, discrimination, language barriers), particularly as municipalities begin to articulate their projects and lack technical knowledge and a diagnosis of what are the problems and what to do about them. As will be further discussed, the technical capacities and knowledge of the subject the assembled team possesses is crucial in the creation of policy. For example, a former IPU staff member in the municipality of Santiago explains that,

“Since we don’t have a new immigration law that generates an immigration policy, here the elected mayor if they have good will they work on immigration and open an office, and if they don’t have good will they do nothing […] Is there an standardized approach for the work those offices do? You could say each office has their approach, but a standardized approach that these offices work on these topics in a similar way? There isn’t, every municipality improvises, and so it depends on the professional capacity that the team within that office has, on who is in charge of that office […] For example I participated in innovating with the issue of visas for school

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children who were irregular, but that wasn’t a policy at the regional metropolitan level, this was an agreement made possible thanks to a personal effort almost, between the municipality of Santiago and [DEM], and what about all of the other municipalities who also live the same phenomenon… you understand? And so each has to look for their own mechanisms as a function of the teams they assemble.” (Interview August 7, 2015).

Given the lack of a national immigration policy (understood by actors to be a consequence of lacking new immigration legislation), the technical capacities and knowledge of teams in

IPUs become all the more important in servicing immigrants.

4.2.3 What does immigration policy look like under the Community Development mandate?

After the first IPUs were created, other municipalities followed suit and created their own agencies, as can be seen by the year of their establishment (Table 4.5). What are the areas in which IPUs create policy? And what do these policies look like? Table 4.6 provides a schematization of the policy areas that IPUs engage in by policy target (i.e. policies for immigrants, policies for the community in general, and policies for municipal governments themselves). Data on which policies are present for each municipality come from two municipal sources, the Municipal Annual Reports113(Cuenta Pública de Gestion Municipal), and the

Community Development Plan (Plan de Desarrollo Comunitario, or PLADECO).124The annual reports provide an account of the different policies and activities that municipal departments carried out during the year, including those by DIDECOs and their subunits (such as

11 Article 67 of the Municipalities Act stipulates that on an annual basis, the mayor shall report back to city council and to organizations of civil society in the community on his or her annual administration and on the general state of municipal government. 12 Article 7 of the Municipalities Act dictates that the PLADECO shall be the “guiding instrument for the development of the community,” and shall include “actions aimed at satisfying the needs of the local community and to promote its social, economic, and cultural advancement.”

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Immigration Policy Units). These reports cannot, however, be taken as comprehensive list of all activities undertaken in a given year, as some municipalities only publish an abbreviated version of their most relevant activities. The information provided by the Municipal Annual

Reports was complemented with information from the Community Development Plans.

Municipalities are required by law to have a current plan, however they are free to decide the time period the plan will cover. A limitation of these planning documents is that they represent the goals set for the municipal government, however, they may fall short of accomplishing such goals (Orellana, Mena, and Montes, 2016). However, the plans do provide an insight into the goals that municipal authorities present to and for their constituencies.

The first policy area, policies targeting immigrants, encompasses policies in support of the social rights of non-Chileans (education, health, housing and access to employment), assisting those in vulnerable situation, advancing regularization for those out of authorized immigration status, and lastly, promoting immigrants’ cultural and political rights. Because in

Chile in order to access the majority of government benefits a person must have a national identification number, the Single National Registry (Registro Único Nacional), many of the programs and services can only cover immigrants with authorization to live and/or work in the country. However, while only the Ministry of Interior (through the Department of Immigration) can issue a resident visa, municipalities have adopted policies that assist immigrants in obtaining the necessary authorization. In other words, municipalities not only apply their programs based on the immigrant categories dictated by the Ministry of Interior, but they go beyond that and empower immigrants in how to obtain residence in the country (and hence, further access to more government programs, benefits and subsidies).

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Education policies include mainly regularization campaigns, wherein municipal authorities work along with central government authorities in order to provide residence visas to students enrolled in basic education. Regularization campaigns are required because many immigrant children are only provided a provisional school enrolment when their parents do not have regular migratory status, which further creates complications in continuing their studies

(they may be dropped from school, not be issued completion certificates, or not be considered for education subsidies). Thanks to regularization campaigns, immigrant students are issued a student visa, which enables them first, to have legal residence in the country (regardless of the migratory status of their parents), and second, access to a series of benefits, which may include food subsidies, student ID (which in turn gives preferential student pricing for public transportation system), scholarships and other educational supports (school supplies), in addition to obtaining a certificate of studies. In terms of health policies, municipal government regularly collaborate with the Health Ministry in various programs which mainly seek to bring the immigrant population closer to health services. Some municipalities have created special programs to ensure immigrants, regardless of their migratory condition, have access to primary care services, such as the Access to Health Care for Migrants, in the municipality of

Huechuraba, Other municipalities create information awareness guides targeted to immigrants, such as the Recoleta’s Support Guide for the Care of Immigrant Population in the Community, or Arica’s Guide for Migrants’ Health.

IPUs also actively promote immigrants’ access to the labour market. Policies in this regard include language training for immigrants who are not fluent in Spanish (the main beneficiaries of these programs are Haitians), trades training, and training on how to create a

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business. In addition, municipalities have structured protocols on how to engage with an immigrant who is looking for employment. For example, the Maipu’s IPU protocols include referring users to the municipal Labour Office (in the case of immigrants who have regular situation), or to organizations of civil society which work closely with the IPU to obtain access to their job banks. In addition, the Maipu IPU maintains links with private companies and informs immigrant users of the qualifications that companies are looking for. IPUs also regularly provide talks for immigrants on subjects like Chilean labour rights and legislation.

Housing is the most deficient policy area for IPUs, due to the fact that housing is largely a competency of the Ministry of Housing (mainly through subsidies for home owners and renters, as discussed in Chapter 3). However, as discussed in a previous section in this chapter, this is an area where municipal authorities are often called upon to respond to crises situations

Some municipal governments have begun to develop specific policies in this area, mainly through the rehabilitation of communal type housing.

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Table 4.6: Policy Areas of Immigration Policy Units

Municipality* Target of Policies Total Areas

Immigrants Municipal Government Community Education Health Housing Labor Vulnerability Regularization Organization Policy Network Sensitization Cultural Sensitization & rights & cultural development development events and other

Arica yes yes yes yes yes yes yes yes 8 Antofagasta yes yes yes yes yes 5 Calama yes yes yes yes 4 Santiago yes yes yes yes yes yes yes yes yes yes 10 Conchali yes yes yes yes yes yes 6 Estación Central yes yes yes yes yes yes 6 Huechuraba yes yes yes yes yes yes yes yes 8 Independencia yes yes yes yes yes yes 6 La Cisterna yes yes yes yes yes yes yes 7 La Pintana yes yes yes yes yes 5 Maipu yes yes yes yes yes yes yes yes yes 9 Penalolen yes yes yes 3 Providencia yes yes yes yes yes yes 6 Pudahuel yes yes yes yes yes 5 Quilicura yes yes yes yes yes yes yes yes yes 9 Recoleta yes yes yes yes yes yes yes yes yes Yes yes 11 * Data for the municipalities of San Antonio, El Quisco, Cerrillos, La Reina, Lo Prado, San Ramon, and San Bernardo was not available.

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In addition to these social services, the majority of IPUs engage in policies targeting immigrants in a vulnerable situation, such as extreme poverty. These actions can include specific workshops and trainings on how to access public benefits networks, that provide items such as food items, medications, medical exams, etc. Also of importance are the benefits that municipalities distribute to vulnerable immigrants thanks to funds provided by the Ministry of the Interior, mainly through the “Aid and Social Advancement for Refugees, Refugee Protection

Claimants, and Vulnerable Immigrants” Program. Through this program, the Ministry of

Interior distributes resources to municipalities for the advancement of immigrants in vulnerability. Municipal governments must apply to be eligible to receive the transfers, and those successful are selected based on their track record of working with immigrants, their technical and administrative capacity, and their institutional guidelines for the protection and integration of the target groups. Municipalities which have received transfers through this program include Quilicura, Santiago, Recoleta, and Independencia,

A subgroup within the policies targeting immigrants are the activities in support of proper immigration status for immigrants, or as is usually referred to by local actors, regularization. Municipal actors in general do not give much consideration to the actual immigration status of a person. Rather, what they look for in a potential recipient of benefits is whether the person has obtained his or her Single National Registry number. An immigration policy expert commented on this issue:

“In Chile there isn’t persecution against irregular migrants; irregularity is not seen like an offense, a great crime. First-demand services, health, education, they are a problem if you are irregular because the officer is beyond capacity, doesn’t have much sensitivity. But in Chile being irregular is an infraction, not a crime, so you can turn someone into regular […] you pay a fine, you get an employment visa, you are irregular, another visa, you are regular, etc. It is not a

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crime. […] So it’s not a big deal for the municipal officer, except for those who have a 200- person wait line, and they give poor service to everyone, and if a migrant doesn’t have papers they tell him or her to go away” (Interview July 24, 2015).

Given this approach towards immigration status, many IPUs create policies that support an immigrant in his or her path to obtaining proper residence status (temporary or permanent).

For example, the Maipu’s IPU (Diversity Office) provides “visa orientation,” which focuses on the processes that users must go through in order to obtain regular immigration status; for this, the most sought-after mechanism is “regularization for causes of employment, which is based on having an employment contract with the 4 mandatory clauses on order for it to be valid”13

(Maipu Cuenta Pública, 2016). Similarly, the Santiago IPU director explains how the office’s first line of work is the socio-judicial area where,

“We advise immigrants on the social aspects of immigration […] a migrant comes in, whether regular or irregular, and has different demands, problems, and so we begin to advise on regularization first, which is very important […] How do we help an immigrant who is not regular? It’s an everyday occurrence, migrant without papers arrives in our office, and says ‘my visa expired,’ or ‘I’m irregular,’ so we start by studying the complete situation, even if a fine needs to be paid, our social worker will look at the situation and so we help with paying the fine, we help with all of the regularization process.” (Castaño 2017).

In addition to providing in-house advice and resources, some IPUs work with organizations of civil society in this area, referring users to organizations that can provide advice and representation when dealing with immigration authorities. In general, IPUs devote important resources on disseminating information for immigrants. Some of these policies include structured reception programs, such as Maipu’s “First Welcome Program.” The program begins with user intake, which obtains all relevant demographic information, which is

13 An employment contract must include a remuneration clause, a term of validity clause, a pension regime clause, and an income tax clause if an immigrant intends to use the contract to apply for a visa based on employment.

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then used to provide tailored information to the immigrant depending on their concern (for example on how to obtain regular immigration status, how to obtain employment, whether it is possible to obtain fine rebates, etc.). Another example is Pudahuel’s “First Welcome and

Attention,” which provides immigrants with information on their labour rights, their responsibilities, benefits (labor, health, and education), at the municipal and other levels of government. Sometimes information campaigns are more targeted, for example, in 2015 the IPU in Independencia carried out a “Right to Nationality Campaign” which provided information and access to legal advice for families which children born in Chile but registered as children of foreigner in transit.214

The last subgroup of policies targeting immigrants include support for their organization as immigrant groups in the community, and support for their cultural and social heritage. In line with the mandate of DIDECO’s to promote the participation of organizations of civil society in municipal governments, IPUs promote the creation of immigrant organizations.

In this regard, municipal staff carry out training sessions in which they explain the legal process for establishing a community organization, provide technical support, and assist newly created organizations in networking. Lastly, IPUs also engage in celebrating the cultural heritage of immigrants, and many of their activities are in this regard. Virtually all IPUs promote the celebration of national days, religious holidays, as well as musical, artistic and gastronomic

214 According to Article 10 of the constitution, a child born to a foreigner who is in Chile during transit to another destination is not considered a Chilean national. However, from 1994 to 2015 the Chilean Civil Registry adopted this designation for children born to parents who, even though could not be considered to be only in transit, did not have regular migratory status. The Civil Registry service estimates 2,500 children were registered as children of foreigner in transit. The criteria was no longer applied after 2015 when the Department of Immigration changed its stance (this process will be discussed in detail in Chapter 5).

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festivals. Celebrating a Migrant Day in the municipalities has become a regular event organized by IPUs. These activities not only make immigrants feel that their culture has something to contribute to their adoptive communities, but the idea is also that these activities will promote links and acceptance amongst long-time community residents.

Second, IPUs also engage in policies aimed at training and educating municipal personnel who have contact with immigrants, such as staff in health and education programs.

As discussed in Chapter 3, a recurring problem is that municipal staff are often not aware of the directives adopted by the institutions of central government (social ministries and DEM), and due to the lack of knowledge, they apply their own criteria. Beyond creating awareness of current national immigration policies amongst municipal personnel, IPUs promote a culture of immigrant-oriented services, meaning they educate front-line personnel on the issues and barriers that immigrants tend to face. The first subgroup of policies involves training of municipal personnel. In the various municipalities, IPUs constantly engage in training sessions, seminars, or workshops on a variety of subjects pertaining to immigrants such as immigrants’ rights, access to health, proper attention protocols, central government policies on immigration, human trafficking, and others. Municipal staff in education and health are two important groups targeted by these policies. An important goal of these policies is to mainstream immigration across municipal agencies, so that all personnel becomes aware of what barriers to access immigrants face, how personnel can discriminate without intending to, and how to implement an inclusive service.

Another subset of policies aimed at the municipal government itself include actions in support of policy development. There is a wide range of actions, but usually these include

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carrying out studies or surveys on the demographics of immigrants in the community (with the goal of finding out what are the most pressing needs), meetings and networking with immigrants in the community. Lastly, IPUs also devote an important amount of their resources to networking activities which in turn improve their performance, for example by participating in presentations, seminars, round-tables, task-forces with other municipal governments, in events put forward by organizations of civil society (universities, think tank, etc.), and by maintaining ongoing links with consulates. This category may overlap with the previous one, policy-development, as some activities will produce knowledge that will be put to use in developing future policy. These provide an opportunity to share practices and learn from what other governments municipal authorities do.

Lastly, in addition to policies targeting immigrants’ access to social services, another set of policies targets Chilean population in general. This would be policies that seek to alter stereotypes about immigrants by creating awareness of other cultures. Here, find that a few

IPUs engage in activities promoting “neighbourly coexistence” (buena convivencia315) between residents. Among these for example we can find Recoleta’s “Intercultural Mediation Program,” and Quilicura’s “Linguistic Mediation Intercultural Program,” both which seek to resolve conflicts between Chilean and migrant neighbors, as well as Independencia’s “Roundtable for

Intercultural Coexistence,” which has a similar objective. However, the majority of these activities overlap with cultural events (mentioned previously). These activities, while they

153 The Spanish term convivencia does not have an exact translation into English. While the English “coexistence” is a good approximation, convivencia entails a peaceful, harmonious coexistence.

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allow immigrants to showcase their culture and their experience in Chile, also promote that

Chileans learn about other cultures and embrace diversity in their communities.

The above illustrates how IPUs are clearly creating immigration policy at the municipal level. As indicated by municipal instruments, many of these policies are created due to the need to include immigrants in the life of the municipality, by resolving real and potential conflicts with native Chileans. Policies aim at including immigrants into the various activities and services their municipalities have to offer, and very importantly, they do so by actively providing supports that immigrants may need while navigating the different government institutions and services. Municipal governments, as a subunit of the state, are clearly creating and implementing immigration policy, that supports regularization for immigrants, employment, access to social services, and protection of their rights, in addition to engaging in an ongoing, reflective processes that is meant to improve on existing policies. This is very much a technical approach to immigration policy, as can be seen by the fact that municipal governments of different parties in the political spectrum engage in these activities, also that the development of policies is left to technical personnel within municipal agencies.

4.3 Depoliticizing immigration policy in municipal government

As has been discussed thus far, Immigration Policy Units at the local level create policy in this area as a subset of community development policies, which broadly, are policies directed at improving the participation of residents of a community in local governance affairs, through providing technical knowledge and resources for neighbors who wish to organize and participate in municipal affairs, as well as through programs and services that target the

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development of specific groups (such as women, the elderly, indigenous communities, among others). However, as will be further argued in this section, the message used by local actors in

IPUs with regard to immigration and immigrants is at times contradictory. This is due to the fact that while policies put forward by IPU target immigrants, at the same time local actors are aware that social policies favouring a group over others (particularly one which is considered not to have a claim to protection from the state, as immigrants are) can create social conflict.

Local actors employ different ways to conceptualize immigrants which are seemingly contradictory. At times actors highlight the fact that immigrants face very specific challenges usually derived from the limited exercise of their rights and lack of knowledge or resources, and thus require specific programs and services that take into account their condition as recently arrived. For example, the head of the Quilicura IPU notes in regard to the challenges that users of her office face:

“In Quilicura there are similar problems than in other municipalities: regulation of the migratory system, adaptation to labour market conditions, access to housing, access to education, and achieving stability for the children, recognition of studies and foreign credentials […] In Quilicura there are Haitians and so French and Creole become necessary, things become complicated at school because of the language, in health care, in employment, and in self-care, in care to one’s self as a person.” (Cabrera 2013).

But at times actors emphasize how the status of “immigrant” (which could mean a number of things, such as that a person is not a Chilean citizen, that he or she does not have proper authorization to live or work in the country, or that even if he or she does, the person may not necessarily be aware of their rights, responsibilities, and state benefits that as a resident of Chile he or she can claim) should be less relevant in the sense that as newcomers become more aware of the services provided by their municipalities and the ways in which they can

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better integrate into Chilean society, the more they will be just like any other neighbor in the community. For example, the head of an IPU located in the Santiago Metropolitan Region notes that a goal of her office is:

“We need for people to see themselves as subjects of rights, as citizens and as neighbors of the community. If he or she lives here, then he or she is a person that counts, independently of their migratory status, of their color, their religion, their origin, they are a neighbor, because materially they live in the community, they could leave to work 8, 10, 12 hours, but at the end live here, because they sleep here, buy here, go to the fair here…” (Interview August 17, 2015).

A similar discussion took place in the Estación Central IPU, which debated whether to refer to newcomers as “immigrants” or as “new neighbors,” and according to the office’s head, ultimately deciding for the second term, as it conveyed better the notion that immigrants are just like any other resident of the community, who the vast majority of which only seek to gain employment, contribute to their neighborhood, and avoid causing problems. Hence, immigrants are seen simultaneously as individuals requiring special considerations and neighbors living in comparable conditions and facing comparable obstacles to the rest of

Chileans. Therefore, how do local actors manage these seemingly contradicting demands, of one the one hand creating particular local government units devoted to assisting immigrants, and on the other one maintaining fairness in allocating state resources? They do so by depoliticizing immigration policies, as will be explained below.

4.3.1 Avoiding the “window for immigrants” policy model: mainstreaming immigration policy

Local actors navigate these demands by presenting IPUs as vehicles for mainstreaming immigration policy at the municipal level of government and in their communities. In general, not unlike what occurs to actors in central government (discussed in Chapter 3), municipal

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actors are concerned that specialized units that provide services for immigrants could create redundancies and positive discrimination, and as a result conflict with locals. This contradiction is considered by actors from the moment the creation of an IPU is even considered. As explained by an immigration policy specialist who was recruited by an NGO to train municipal staff on immigration policy and models for establishing an IPU at the municipal level:

“There are municipalities that say ‘we will not create an office [for immigrants], they have to access [services and programs] like every other Chilean, then there are others that say ‘let’s create a separate office’ but there you are creating a duplication of functions which is quite absurd, because if you need to ask for a financial support, there is an office of financial support, why would you have an immigrant asking for help at a different office? Everything apart, when what should be is coordination.” (Interview July 24, 2015).

A way to resolve this conflict is to show that IPUs are much more than places where a person receives a subsidy or benefit or that creates a special stream for immigrants. For example, the mayor of Independencia noted in a radio interview that the point of having an immigration office “is not to have a window for immigrants and to serve them separately and in that way to consolidate discrimination,” but rather the IPU in his municipality “develops public policies, trains functionaries, creates mainstreaming policies, produces accurate diagnostics, and with all this, it creates programs that favour integration” (Duran 2016). A staff member in the

Recoleta IPU also noted that when the office was just in the planning stages, there was a disagreement between those involved, noting that,

“Those of us who have been working on [immigration] for a long time suggested that [the office] should not be exclusive for immigrants, primarily yes, because they need this support until there is a change in legislation anyways […] I compare it to an elderly person, who is a citizen but obviously has very particular characteristics due to his age, due to a decay in health, other limitations, and [the person] needs not so much special considerations, but rather conditions which are favorable so that his quality of life doesn’t deteriorate” (Interview August 17, 2015).

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Similarly, the specialist previously mentioned encouraged municipal staff in her workshop to consider:

“The model that I proposed to [the municipalities] was an office that in fact would look at aspects specific to migration, that would provide information, which is what no one ever has, that would help [immigrants] in obtaining information, that would assist them in applying for visas, because the Immigration Department is always surpassed [..], but that also would train municipal personnel so that they could serve the immigrant population. […], that would train municipal staff on the rights of immigrants, to engage in coordination, not in a parallel type of work” (Interview July 24, 2015).

As illustrated by Table 4.6 above, IPUs do devote significant resources in activities beyond providing benefits or subsidies for immigrants. In other words, they clearly go beyond simply following the “window for immigrants” policy model, and instead seek to become the municipal venue which mainstreams immigration by targeting other groups, namely municipal personnel and Chileans in general as part of their reach. Local actors are concerned that special benefits will not assist immigrants in integrating, so even policies targeting immigrants have various goals, such as for example assisting them in accessing the labour market or obtaining the right immigration category. In addition, as was described, two other groups of policies target the municipal level of government itself (with the goal of mainstreaming immigration into local government as well as improving on policy design and execution), and Chilean society in general (albeit these are perhaps quite limited). IPUs want to be the institutional hub where policies are conceived, not only a place for dispensing assistance. Hence, the role of an

IPU is to ensure potential obstacles or conditions which may create marginalization or discrimination of immigrants are eliminated.

A second way in immigration policy is mainstreamed into municipal affairs is by subsuming the policies of IPUs under a larger mandate for municipal institutions to encourage

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the creation of communities which are diverse, intercultural, and free of discrimination. As previously discussed, immigration policies fall under the mandate of DIDECOs and community development. In addition, IPUs specifically have as a goal the cause of advancing diversity in their communities. As illustrated by Table 4.5, how IPUs identify themselves in their naming practices signals how IPUs are conceived as a vehicle for diversification and plurality of the community. Municipal agencies employ terms such as “diversity,” “inclusion,” “tolerance,

“integration” “interculturality” “no discrimination,” “neighborly coexistence” or “human rights” as part of their names. In fact, 12 of the IPUs do not even refer to immigration or immigrants as part of their name. Perhaps more important than the choice of words when naming an IPU, is what is included as part of their mandates, which further emphasize how the office will contribute to such goals. For example, according to the Arica IPU (Office for

Diversity, Inclusion, Refugees and Migrants), the office shall have as primary function “the advancement, protection, recognition, and the practicing of human rights of social groups with high vulnerability, especially those from sexually diverse groups, and others, such as refugees and migrants.” Similarly, the Recoleta IPU (Program for Migrants and Refugees) has as mandate to undertake “activities that promote the inclusion of the migrant community into municipal activities which influence the creation of a community that is multicultural, democratic, and with emphases on rights, gender, and citizenship.”

Policy actors at the municipal level (and in general) feel this emphasis on diversity and interculturality stands in contrast to what they perceive to be the idiosyncrasy of Chileans in general. They point out how Chileans are not used to living side by side with people of different nationalities and perceived different customs and habits, hence, Chileans should develop an

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appreciation for diversity. For example, the director of the Santiago Municipality DIDECO noted how their workshops on Convivencia and interculturality are important in changing the attitudes of Chileans,

“We have a different idiosyncrasy, culture […] it is as if the mountain, the sea, the desert, and the Antarctic part make us have a particular idiosyncrasy, for example we have to understand we have to work with migrants on the issue of regulations. In other countries it’s not a problem to be out on the street with a beer, but here it is. We have also discussed the issue with Carabineros, and there’s other similar things.”

Interculturality can also mean for actors to have the necessary resources, sometimes understood as human resources, to promote interculturality. For example, the head of the

Santiago IPU notes how her office not only has intercultural policies, but the IPU itself is intercultural,

“We have a multicultural team, Chileans, Venezuelans, Haiti and Colombia. Interculturality is a small change, interculturality is the starting point which is the team. We continue with the goal of approaching the area of migration from an intercultural, inclusive perspective, for a more diverse and inclusive Santiago, as our mayor says […] The third line of work is neighbourly coexistence and interculturality, where we implement continuous introduction and training for migrants, neighbors, in support of appropriate coexistence.” (Castaño 2017).

In general actors share the view that while immigrants have different cultures and values from Chileans, it is important to help them preserve them, that stripping immigrants of their culture would not only be detrimental to them, but also to Chile. In this sense, a former

IPU staff member in Santiago notes,

“In Santiago we celebrated the International Migrants Days in Plaza de Armas, which was a super interesting thing, like an educational activity also, in interculturality, for the [Chilean] population. Because I think that’s the challenge moving forward, the issue of how a Chilean can also look at the other but as a legitimate other, with that richness, not from the perspective of cultural assimilation, of having to culturally assimilate as a currency exchange for acceptance.” (Interview August 7, 2015).

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In this view, immigration policies put forth by IPUs are more than just subsidies. Rather, municipal immigration policy is linked to notions of multiculturality or interculturality, which are seen as normative goals for life in the community. Hence, more than being a “window for immigrants,” IPUs play an important job in transforming the communities which they serve into places where all neighbors, especially those likely to be discriminated against, feel included. Hence, immigration policy is not so much about helping foreigners or taking away state resources from Chileans, but about creating inclusive communities. In this sense, it is interesting how municipalities are cooperating with the Department of Immigration in order to position IPUs as the institutional venue to promote diversity, and in this way they expanding the reach of immigration policies. In October 2015 the Department of Immigration launched a program called “Migrant Seal” (Sello Migrante) with the goal of assisting municipal governments, particularly IPUs, in developing and institutionalizing immigration policy at the local level. The program is a certification issued to those municipalities that have become

“intercultural territories, free of discrimination” (Gonzalez, 2017). According to the Ministry of

Interior, “Migrant Seal is a recognition that the Chilean state issues, through the Department of

Immigration, and the Ministry of Interior and Public Safety, to those municipalities which carry out positive actions leading to the inclusion of the migrant population, based on quality standards and with a rights, inclusion, and no-discrimination approach.” (Ministry of Interior,

2015). Municipalities have to signal their intent to obtain the certification by signing a commitment letter that indicates they are prepared to undertake the necessary changes and policies that will in turn transform them into territories free of discrimination.

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The program is built as a roadmap, meant to accompany municipalities in achieving the necessary milestones once they have signaled their intent. In addition, the program also serves as a networking tool, allowing program coordinators in each municipality to exchange information, answer doubts and questions, and ask for information from each other. In exchange for participating, municipalities obtain certain benefits: advising by the Department of

Immigration on inclusion and interculturality; recognition by the state for the work carried out, support from the department for activities migrants’ inclusion and interculturality, and the possibility of showcasing the municipality’s work in various venues (Ministry of Interior, 2015).

But perhaps more important than these benefits municipalities obtain, is how the program assists IPUs in institutionalizing their efforts on immigration policy, as they relate to goals of interculturality, diversity, and elimination of discrimination. As explained by a staff member in the Department of Immigration,

“The letter of commitment commits the mayor and city council to carry this out […] We have to support these teams of individuals which are just starting. One can say they have organized an office, they have started to do something, so the mayor and city council need to know what that is about and support them, because many times [the teams] have a small program, project, initiative, part of a larger one, like DIDECO, a larger organization, and at the beginning [they have] almost no resources, or none, very little, knowledge by the rest of the municipality, almost none or very little. Well, departing from this [letter of commitment] that says I want to get there, the mayor wants to get there. And why city council? Because there sit those who support the mayor and those who want another mayor within 3 years. And if you sign something and commit, same with the mayor, you are saying this is a state, not government, policy. It doesn’t depend on me governing, but it’s something that has arrived in this municipality to stay. And so the letter of commitment is crucial for us. It’s the start of an accompanied road. It’s forward looking that says this cannot change every 4 years” (Gonzalez 2017).

Municipalities have shown to be receptive to the “Migrant Seal” program. By August

2017, three municipalities, Quilicura, Peñalolén, and Estación Central, had obtained the

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certification (meaning their actions and policies have been assessed and they have been declared by the Ministry of Interior to be municipalities free of discrimination), 17 had taken the first step of signing the commitment letter, and 25 more had approached the Department of

Immigration indicating their intention to participate (but their mayors had yet to sign the commitment document). This illustrates how important immigration policy has become for municipal governments, and how it is shifting from going beyond the “window for immigrants” model to transforming IPUs into the municipal government venue where policies on interculturality and inclusion, of immigrants are other vulnerable groups, are generated and implemented.

4.4 Conclusion

This chapter has discussed the ways in which municipal governments in Chile have become involved in creating and implementing immigration policy. Although immigration policy is a competence of the Ministry of Interior and municipal authorities are constrained by this fact, from about 2010 onwards more and more municipalities have become involved in articulating local immigration policy, in addition to providing services and supports to immigrant residents in their communities. This incursion into immigration policy is the result of a number of things. First, local governments, due to their proximity to the daily lives of residents of a community, are accessed by immigrants in what for many of them means their first contact with the Chilean state. Second, due to the absence of public policies at the central level, municipalities have stepped up to fill this gap, as they regularly deal with issues that demand their attention. Municipal politics also play a role as non-citizens have the right to vote

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in municipal, regional and national elections after a five-year of residence period. At the municipal level, the electoral participation of immigrants has become a desirable voting group.

In this institutional context, some municipal governments began establishing

Immigration Policy Units, or IPUs, with the goals of engaging the immigrant population while at the same time altering the perception of Chilean population with regards to immigrants. The first few IPUs were established in response to crisis situations, but as time went by, their work has become more predictable and similar across the various municipalities. IPUs are part of a set of policies at the municipal level known as community development. In keeping with their mandate of community development, IPUs create policies aimed at providing services to immigrants, Chileans, and municipal personnel.

A problem that arises is that of perceived competition between nationals and immigrants. Local actors in IPUs are aware that the work they do can be construed as taking away resources from Chileans to give to non-deserving newcomers. How do local actors resolve this seemingly contradicting goal? By taking two major approaches. First, IPUs are positioned by local actors as the municipal venue in charge of mainstreaming immigration policy, in contrast with being simply an office where immigrants are dispensed help. Second, IPUs have expanded their reach to integrate goals in local immigration policy into the larger normative goal of creating inclusive communities free of discrimination.

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5. The judicial branch: reinterpreting immigration legislation

The previous two chapters discussed how different levels of government (central and municipal) have dealt with the absence of both immigration policy and a modern immigration legislation, which continues to impose a securitized view on immigration designed under the brutal military dictatorship. What these two chapters have revealed is that in the absence of legislation that effectively forces the government to implement specific pro-immigrant policies

(either control policies or integration policies), actors at the central government level and municipal government level nonetheless have tools at their disposal which allow them to bypass the formal, no longer workable institutions, and empower them to create policy at the margins of formal policies and rules. As this chapter will now explore, a third element in this story is the ambiguity of rules on immigration, particularly their relevance to nationality legislation. This chapter will argue how the ambiguity or vagueness of nationality rules has created spaces for such rules to be contested, leading to the creation of new policies less restrictive of immigration, in contradiction to DL 1094.

As this chapter will demonstrate, organizations of civil society engaged in strategic litigation have generated policy change by arguing certain rules regarding immigration, as contained in the Chilean constitution and DL 1094, are underspecified, and for that reason, they can and should be reinterpreted in a manner consistent with international human rights norms.

This strategy has been first and foremost applied to a group of cases where children born in

Chile to undocumented parents where denied Chilean nationality by the relevant authorities, resulting in thousands of cases of statelessness. Moreover, this chapter argues that the exclusion

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of thousands of children from obtaining Chilean nationality was not simply the result of authorities choosing to discriminate against immigrants without regard to their rights. As will be shown, relevant authorities in the Ministry of Interior – Civil Registry and DEM – were struggling to interpret domestic legislation but were given rules that were vague and underspecified. Given that they had to make decisions based on imprecise rules, they had to create their own working definitions. In doing so, what was initially a semi-restrictive rule

(adopted by Civil Registry), became a more restrictive one (adopted by DEM), to finally return to a more open and liberal definition (mandated by the Supreme Court, and subsequently adopted by DEM). In order to provide meaning to an imprecise rule and be able to make a pronouncement on the matter, the Supreme Court had to resort to rules and definitions external to the constitution and DL 1094. In doing so, the court provided limits to what was perceived by organizations of civil society as arbitrary applications of Chile’s immigration law when it comes to recognition of nationality based on ius solis.

5.1 Chilean nationality regime: the road to exclusion

Article 10 of the Chilean Constitution states that nationality can be granted based on both the ius solis and ius sanguinis principles.1 The first principle is directly relevant to immigrants, as children born in Chile to immigrant parents are by definition excluded from nationality claims based on ius sanguinis. Being born on Chilean territory does not however, automatically mean that one is a Chilean national. There are two exceptions to the ius solis

1 According to Article 10 of the Constitution, Chilean nationality at birth is recognized for “those born in Chilean territory,” as well as for “those born to a Chilean father or mother, in foreign territory.”

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principle: first are children of diplomats or those in the country on behalf of a foreign government,2 and second, the children born to parents who are in the country while in transit.3

These exceptions were introduced in the 1925 Constitution; prior, Chile’s 1833 Constitution understood ius solis as the simple fact of being born in Chilean territory, without exceptions

(Historia de la Ley). The ius solis principle was again discussed during the drafting of what would become Chile’s 1980 Constitution. In the transcripts of the Ortúzar Commission,4 the exception is discussed as a counterexample, meaning that commission members discussed the ramifications of a child born to Chilean parents in foreign territory. In that case, they reasoned, the child would have the right to the nationality of his or her parents, and thus the foreign government would not be obligated to grant the child nationality (Historia de la Ley). Thus, members of the commission resolved that in the opposite case, when children of non-Chilean parents were born on Chilean soil, they would not be stateless; they would be in effect nationals of a foreign country. While the exception introduced in 1925 was not removed, members of the

Commission felt, however, that the 1925 article should be amended. As it stood, it stated that in both exceptions (i.e. children of foreign diplomats and children of transient parents), the person could choose between the nationality of their parents and Chilean nationality. Feeling this statement was inaccurate (as the person could have a right to other nationalities besides that of

2 The exclusion of children of diplomats from birthright citizenship is a common practice around the world, as parents are considered to have a special status in the country in which they are representatives, and this extends to their children. 3 The specific wording used in Article 10 for the second exception is hijos de extranjeros transeúntes, or “children of foreigners who are transient.” 4 The Constituent Commission, also known as the Ortúzar Commission, was group of constitutional experts established by the military junta to assist in an advisory capacity in the drafting of a new constitution. See Barros 2002.

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their parents), the commission resolved to amend the article by including that in both exceptions to the ius solis principle, children could opt for Chilean nationality when they reached 21 years of age.5

By 1982, Civil Registry authorities (subordinate to the Ministry of the Interior) found that the meaning of “transient foreigner” was not sufficiently specified by the constitution, and so they were forced to create their own administrative definition for cases of children born in

Chilean territory to non-Chilean parents. For this purpose, in 1982 the Civil Registry adopted an internal resolution that defined “transient” as a person who had lived in the country for less than one year (Sandoval Ducoing 2017). Thus, Civil Registry’s Order 4946 from July 14, 1982 distinguishes “transient foreigners” from “non-transient foreigners.” The order instructed Civil

Registry personnel to define the parents as transient if they had resided in the country for less than one year, and in such cases, to enter a note on the birth certificate identifying the child as

“Child of a Transient Foreigner,” or HET. Even though in principle this administrative interpretation did not discriminate on the basis of the parents’ migratory status (as long as they could prove they had lived in the country for more than one year), in practice authorities sometimes would condition registration of the child to the parents’ migratory status, as proof of residence not accompanied by regular immigration status would result in denying the child’s right to Chilean nationality (Ribera Neumann 2002; Sandoval Ducoing 2017). Some of these

5 This procedure, called Nationality by Option, was subsequently specified in Decree Law 5142 from 1960, which stipulates the procedures for the naturalization of foreigners. Children born of “in-transit” parents must present their claim to Chilean nationality within one year of turning 21, otherwise they will have forfeited their claim right.

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cases were taken to the Supreme Court, which ruled that the children should not have been registered as HET based on the Civil Registry’s own administrative interpretation.

The meaning and application of the transient rule was once again redefined, becoming even more restrictive, under former president Frei Ruiz-Tagle in 1995. Then, the Ministry of

Interior issued a further instruction, Order 6241 from October 25, which superseded the former

Civil Registry instruction. The new administrative order specified that in addition to tourists and crew members, the meaning of “transient” should now include foreigners who could not provide proof of their regular status in Chile (Sandoval Ducoing 2017). With this second administrative instruction we can see a clear move towards a more restrictive criterion. Whereas the 1982 Civil Registry interpretation did not explicitly discriminate between parents who could provide proof of their regular status in the country and parents who could not (even though in practice the authorities sometimes did), and only conditioned nationality of the child on the parents’ length of residence, by contrast, the 1995 interpretation by Interior changes the operating criteria to now be the “legal residence” status of the parents, effectively denying nationality based on ius solis to children when parents had lost regular status or never had it in the first place.

Given the change in criteria, Civil Registry authorities did not agree with the new interpretation established by the Ministry of Interior, and thus referred the matter to the Office of the Auditor General for clarification. In 1998, the Auditor General issued opinion 006197N98, challenging what it considered an improper use of the Ministry’s authority. According to the opinion, the Ministry of Interior did not have the authority to interpret the term “transient” as contained in Article 10 of the Constitution, as DL 1094 only authorizes the Ministry, through its

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Deputy Minister of Interior, to determine on a case by case basis if a person (i.e. a child presented by his or her parents before Civil Registry authorities) is or is not the child of a foreigner in transit (and by extension, if the child is or is not a Chilean national). In its opinion, the Auditor General stated that to this end, authorities need to take into account the Chilean

Civil Code, which divides people into those with a domicile and those in transit, and also refers to the meaning of the word “transient,” which refers to a person who is passing through a place.

Thus, the Auditor General established parameters to the restrictive interpretation adopted by the Ministry of Interior three years before.

It is unclear why, but after the opinion issued by the Office of the Auditor General, Civil

Registry authorities continued to apply the definition given by the Ministry of Interior in 1995 for another 20 years, after which the practice was challenged by organizations of civil society.

The absence of a clear definition of the term “transient” in the constitution or in DL 1094 led administrative authorities to find ways to operationalize the meaning of this concept in practice.

Through administrative orders, Civil Registry authorities and then Ministry of Interior, sought to provide the parameters. However, by 2014 the meanings adopted resulted in nearly 3,000 children (and possibly many more as will be explained below) being registered as HETs at birth

(Fuentes, Lagos, Lawson and Rodriguez 2016). By failing to grant Chilean nationality at birth, due to what a Chilean scholar has called the “misunderstanding” of a category (Cubides Franco

2013), the state failed to protect the citizenship and social rights of these children. Furthermore, it left many children in a condition of statelessness, as they could not, for a number of reasons, effectively claim the nationality of one or both of their parents. In this context, organizations of

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civil society have stepped up and demanded a redefining of this category to correct the states’ misapplication of this term.

5.2 The emergence of civil society organizations

Organizations of civil society have been key in understanding why governments have adopted less restrictive nationality policies, and by extension, more open policies towards immigrants in Chile. The pro-immigrant civil society has argued that the existing rules, DL 1094 and the Chilean constitution, are outdated and no longer workable, and instead, certain rules can and should be reinterpreted. Consistent with the pattern of immigration policy-making discussed in the two previous chapters, actors pushing for more open immigration policies have found a way to do so within the outdated framework provided by DL 1094, effectively providing constraints to this framework. While actors have not been able to replace the existing framework in its entirety, they have done so in practice, particularly through the government’s employment of administrative orders that put limits around the constitution and DL 1094. This approach, which involves bypassing the outdated rules, shows once again how actors are capable of doing immigration policy by stealth. Actors are not directly confronting the issue of immigration reform but instead, promoting policy change through administrative changes, which isolates them and the policies they support from broader debates on immigration.

Nonetheless, the outcomes in terms of policy change are quite significant for expanding the rights of immigrants, especially of those considered irregular by the Chilean state. Thanks to this task of reinterpreting and re-writing of rules, actors have created a minimum floor-type of

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situation that now holds the Chilean state accountable to certain international standards and which protects the rights of immigrants.

While the number of actors and organizations working on immigration in Chile has increased in recent years, one organization that has been crucial in setting the public agenda on immigration and in being interlocutors with government actors is the Jesuit Migrant Service

(Servicio Jesuita Migrante, or SJM). SJM shares with other civil society organizations the view that the current domestic legislative framework and the institutions based on it are outdated and incapable of adequately handling immigration, and that the Chilean state is failing for these reasons to meet its international obligations. SJM was established in 2000, within the context of an increasing Peruvian immigration to Chile. The initial services provided were social and legal assistance, and the organization was almost entirely staffed by volunteers working out of a

Jesuit parish. The parish was strategically selected as it was located in the Estación Central

Municipality, which thanks to its busy train and bus stations, is a place of first-arrival for many immigrants. By 2007 the organization began to professionalize its services, employing technical professionals and separating its physical location from the parish. An important component of the professionalization of services was to increase the number of legal professionals working directly with immigrants. Currently, SJM in Chile has four areas of work: social inclusion, legal, education & interculturalism, and policy advocacy.

Moreover, since its establishment, SJM’s work and services are mainly aimed at providing services for irregular or undocumented immigrants. For this reason alone, having an established body of legal professionals became extremely important early on. As time went by, especially with increases in immigration after the return to democracy in the 1990s, it became

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clear that more professional legal expertise was required to effectively resolve increasingly more complex situations. More and more frequently, volunteers and staff encountered families whose members had different immigration statuses (different for parents than for children), deportation orders involving removal of a parent or parents with children born in Chile, cases of statelessness, changes for immigration status (such as when someone had “lost status” due to a severed work contract), as well as requests for refugee status (either an initial request or an appeal to a rejection by authorities). All of these became more common, in addition to the more regular cases of straightforward workplace abuse, abuse by landlords, and assistance in finding employment, housing, or social programs. These increasingly complex cases also signaled that the SJM required a new vision and a restructuring of its staff and functions, leading to the professionalization of the services provided.

As noted by one of its members, the majority of immigrants that approach SJM do so because they are in irregular status, either because they entered the country through a non- sanctioned entry point, or because they have overstayed a visa. Other groups of immigrants, which are less prone to vulnerabilities since they are less likely to have undocumented status, such as Argentineans or Europeans, are not a priority for the SJM, as explained by the senior member,

“SJM is interested in those immigrants who come in a vulnerable situation, and they tend to be Peruvians, Colombians, Ecuadoreans, Bolivians, Dominicans. For example, Chile demands a visa for Dominicans, and when there’s more conditions imposed, this favours human trafficking […] Haitians that come fleeing the earthquake, Colombians fleeing violence” (Interview July 29, 2015).

One of the work divisions of SJM is policy advocacy, and its strategy involves building relationships with government actors. A senior member of the organization noted they had

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regular, direct communication with staff from DEM and the Ministry of Interior (this was especially the case during the second Bachelet administration). It is also quite common for staff from SJM and other organizations to be recruited by government thanks to their technical expertise in areas such as law, social work, and immigration studies. Some of the participants interviewed for this study who were working in government (either at the central or municipal level) had begun their careers in organizations of civil society such as SJM, or participants working in civil society when interviewed, would later be recruited by government. These connections are valuable in establishing channels of communication between non-government and government actors. SJM also uses media presence as part of its advocacy strategy, providing expert commentary on tv and radio pieces, as well as publishing editorial pieces in widely circulated newspapers and other print media.

At the same time SJM began expanding its core services and responding to more complex situations, other organizations in Chile started becoming involved in providing legal advice to immigrants and carrying out immigration advocacy work. One of the organizations was the Legal Aid Clinic from Alberto Hurtado University (Alberto Hurtado Clinic). The origins of the clinic date back to 2001, when the university’s law program established it as a required subject for students in the 5th year of their program. The goal of the clinic was to expose students to working on real cases involving the judicial system and develop their expertise. Students are supervised by professors and must successfully pass the course in order to graduate from the law program. From its beginning, the clinic provides access to legal services for vulnerable members of society. By 2003, professors and students began working on more and more cases with immigrants, and so a special section dedicated to immigration cases

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was opened. Because Alberto Hurtado is a Jesuit university, there existed an organic connection with SJM and the work and connections it had already established with immigrants, and the two organizations began collaborating. The clinic’s immigration section would seek to provide more streamlined services to clients, taking advantage of the connections with the immigrant community developed by the SJM.

Following a similar logic, a second group of legal experts out of the Diego Portales

University, established the Clinic for Migrants and Refugees (Diego Portales Clinic) in 2008. The university had established a Human Rights Centre in 1998 based out of its Faculty of Law.

However, in 2008, a special topics course was developed, in response to the then government’s announcement of an immigration amnesty. Through this course, students in the law program would obtain practical training with clients seeking to obtain regular status under the amnesty.

The course subsequently was adopted by the faculty, and the clinic was housed as part of the university’s Human Rights Centre (which also houses the Public Interest Issues and Human

Rights Clinic). Similar to the Alberto Hurtado Clinic, professors and students in the Diego

Portales Clinic work primarily with immigrants in a vulnerable situation, providing legal advice on immigration law, asylum, labour law, family law, and criminal law.

Finally, a third organization that joined efforts was the Human Rights Office of the

Corporation for Legal Assistance (Oficina de Derechos Humanos de Corporación de Asistencia

Judicial, or CAJ). CAJ is a public office, created under the Ministry of Justice, and tasked with providing access to the legal system to persons who do not have the financial means to procure legal representation for themselves. Since 1981, CAJ has been providing legal assistance, first in the Metropolitan, Valparaíso, and Bío Bío regions, and subsequently, with representation in

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Tarapacá and Antofagasta. In total, the Corporation has offices in 328 municipalities in Chile

(Navarro, Oyandel and Curtze, 2014). Similar to the clinics, CAJ provides valuable training and development opportunities to students and recent graduates of law programs, which are supervised by full-time lawyers. The number of cases related to immigration seen by the various CAJ offices is significant. Just during the first half of 2017, nearly 3,000 cases were seen in the different offices in the Metropolitan region (Radio Universidad, 2018). Similar to the cases dealt with by the clinics, immigrants approach CAJ asking for help in order to stay in the country (such as when they have been issued a deportation order), with family law cases, and labour law cases.

As we will see in the next section, litigation by these organizations has been crucial in forcing a reinterpretation of formal rules contained in the Chilean constitution as well as DL

1094.

5.3 Framing immigrants’ rights as human rights

It is important to note that while Chile is not an immigration sending country, it is signatory to treaties and conventions that protect the rights of immigrants. This is interesting since these instruments are for the most part supported by immigration sending countries as a way to seek protections for their nationals abroad, especially for migrants who are undocumented or have a precarious status in the destination country. For example, while the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families has been ratified by most Latin American countries (with the exception of Brazil, Costa Rica, and Panama), receiving

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countries in North America (Canada and the United States) and European6 countries have taken no action on it (UN Human Rights 2018). In this sense, Chile is an oddity, being an immigration receiving country which supports international instruments that protect the rights of immigrants (Table 5.1). Chile is in addition party to universal rights treaties (Table 5.2).

Table 5.1: International instruments relating to the rights of immigrants ratified by Chile. Instrument Year of Adoption International Convention on the Protection of the Rights of All Migrant Signed: 1993 Workers and Members of Their Families Ratified: 2005 United Nations Convention against Transnational Organized Crime Signed: 2000 Ratified: 2004 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Signed: 2002 especially Women and Children Ratified: 2004 Protocol against the Smuggling of Migrants by Land, Sea and Air Signed: 2002 Ratified: 2004 Source: Lube Guizardi et al (2015), UN Treaty Collection

Table 5.2: International instruments on human rights ratified by Chile. Instrument Year of Adoption Universal Declaration of Human Rights Signed: 1948 Ratified: 1948 International Convention on the Elimination of All Signed: 1971 Forms of Racial Discrimination Ratified: 1971 International Covenant on Civil and Political Rights Signed: 1972 Ratified: 1972 International Covenant on Economic, Social and Signed: 1972 Cultural Rights Ratified: 1976 Convention on the Elimination of all Forms of Signed: 1979 Discrimination Against Women Ratified: 1979 Convention against Torture and Other Cruel, Inhuman Signed: 1988 or Degrading Treatment or Punishment Ratified: 1988 Convention on the Rights of the Child Signed: 1990 Ratified: 1990 American Convention on Human Rights Signed: 1969 Ratified: 1990 Source: Lube Guizardi et al (2015).

6 The only two exceptions in Europe are Bosnia and Herzegovina (ratified in 1996) and Serbia (signed in 2004).

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Lube Guizardi et al (2015) note that the ratification of these instruments signals an incoherent practice by the Chilean state. On the one hand, it signals that the state is prepared to acknowledge the existence of certain universal rights, which are embedded in democratic practices and the universality of human and social rights. On the other hand, she notes, the domestic legislative framework contradicts these premises, by subsuming immigrants under a national security paradigm (as discussed in Chapters 1 and 2). According to the authors, this disconnect between the ratification of international instruments and the domestic framework has created a legal vacuum, as international commitments on immigration are not supported in domestic practice by legislation or other policy instruments. This notion of a legal vacuum is important for the argument in this chapter. The vacuum created represents at the same time opportunities for actors to re-write and replace the old, outdated securitization framework with new rules which are more attuned to Chile’s new immigration reality and which better safeguard the rights of immigrants, particularly those in vulnerable or precarious situations. By defining immigration issues as human rights issues, organizations of civil society have expanded the repertoire of rights that ought to be defended by the state to include migrants. In their strategy, they have attacked ambiguous or underspecified rules contained in immigration legislation, arguing that the way rules are written merit a different interpretation; in doing so, they have pushed for an alternative interpretation of the rules, one which has changed the position of the Chilean state with regards to the rights of immigrants. However, while the state has adopted new rules and policies with regards to immigration as a result of the efforts of civil society organizations, this does not mean that the legislative framework has been reformed.

Nonetheless, civil society organizations have taken this opportunity and produced changes in

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policy, albeit the original formal framework governing all aspects of immigration in Chile, DL

1094, has been left untouched.

As a product of its time and political context DL 1094 does not include any provisions with regards to the human or social rights of immigrants. In this context, organizations of civil society working towards the protection and rights of immigrants have argued that this is unacceptable in a country like Chile, where democracy and the rule of law are norms, and where many of the institutions created during the military dictatorship have been renounced and replaced with more democratic, egalitarian ones. Hence, these organizations promote the rights of immigrants by trying to make the Chilean state accountable to its international commitments. They do this by arguing that basing policy on legislation that treats immigrants as potential criminals is counter to modern values. In their view, migration should be seen as a human right. Participants in this study pointed out that current legislation is not only outdated in the sense that it does not provide a flexible and practical system of immigration, but also in the sense that it dates back to the dictatorship, and so for that reason it is devoid of any human rights approach.

For example, an immigration expert who advises organizations of civil society explained how the absence of a human rights approach in DL 1094 is an outdated way of looking at immigrants,

“What is our preoccupation? Because that is the necessary step in passing to the legislation stage. You know that we don’t have an immigration act, it is legislation for foreigners, lacking any rights approach, it is about how to defend ourselves from immigrants” (Interview August 12, 2015).

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Similarly, the director of an organization explained their concern with defending a number of rights not contained in DL 1094,

“We have been able to frame immigration as a human rights issue, it is something that [the organization] has put forward, and in that position are contained a number of principles that the state must adopt, such as the principle of non-refoulement at the border, family reunification, and the child’s best interest” (Interview July 10, 2015).

Consistent with their criticism of the current immigration act, organizations of civil society have been at the forefront in the demand for immigration reform. As discussed in

Chapter 3, they were important participants in the 2015 consultative process (which DEM carried out in order to obtain input on what was hoped would become an immigration bill).

Before this, they were the main objectors to the immigration bill sent to congress in 2013 under former president Piñera. Any potential new legislation, they argued, must take into account certain universal principles, eradicate discrimination based on immigration status of a person, and above all, reform the securitization of immigration contained in DL 1094. In other words, organizations of civil society believe the current system is broken and unworkable, and this creates unnecessary complications, as explained by the director cited above:

“[Our organization] values some of the measures taken by the government thus far, but they are dispersed, administrative, not legislative. There are amnesties, but Chile should have a modern visa regime, instead of amnesties every two years, because then people regularize, then they fall back into irregular status, etc. It doesn’t work” (Interview July 10, 2015).

In this regard, a senior staff member from another organization indicated a similar frustration with the way government deals with the matter, lamenting the lack of defined public policy and outdated legal framework:

“On the other hand, there’s no defined [government] plan. An immigrant arrives through his or her contacts, and begins to integrate thanks to civil society institutions, but that is my point,

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there’s no defined policy, the management is quite contradictory, there’s discretion from functionaries, things are not regulated” (Interview, July 23, 2015).

As further explained by a lawyer working in one of the organizations,

“What should take place, and this has been a commitment by president Bachelet, is a reform of immigration policy with a rights approach, meaning [the reform] should not only be centered around who should come in and who should leave the country, but around policy that takes into account all the problems of immigration and does so under a rights approach, meaning that from the perspective of [Chile’s] obligations under international treaties on human rights, well, it should take into account how that is made into the rights that immigrants should have access to and which should be protected, respected, and guaranteed. That is the reform which I consider needs to happen” (Interview July 9, 2015).

The defense of a human rights approach on immigration policy was made evident during the process that led to the bill on immigration, drafted by the government of former president Piñera. The bill was criticized by virtually all organizations working with immigrants in Chile, for what they perceived to be a view of immigration based solely on the economic benefits of immigration for Chile and for treating immigrants as resources; civil society groups were very critical that the Piñera bill, as they perceived it, favoured “selectivity” over other more universalistic principles. All organizations were fairly in agreement about opposing the bill. An immigration expert and former member of an organization explained:

“[The party] sent its bill [to congress], it recognized some international treaties, but its outlook was economy-based, and so the first reaction by organizations towards Piñera was ‘we can help you.’ The [bill’s redactor] met with some people in NGOs, he asked for opinions, and there were concrete meetings. Then the bill arrived and nothing of what had been discussed was in it. And so the last year we all opposed the bill that had been presented” (Interview August 6, 2015).

Participants who were members of civil society organizations pointed out the Piñera bill was not adequate in its treatment of human rights, and for them, any future legislation had to be grounded on a human rights approach. For example, pointing out their disappointment with the bill, a lawyer working with one of the organizations noted,

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“On the bill that was presented under Pinera, there was no participation by civil society; this was a task delegated to a group of professionals that worked at DEM […], and they put together that bill, and if you look at it, its preamble is quite beautiful, the message, because it talks about international standards, but then the articles seem to have been written by someone else, it’s as if they didn’t talk to one another” (Interview, July 31, 2015).

The head of another organization also had a similar opinion,

“In my view, this was not a bill based on a human rights framework and neither did it take into account the international standards with regard to the protection of migrant persons” (Interview July 9, 2015).

5.4 Strategic litigation: reinterpreting the rules

After some time working on providing legal advice and representation to immigrants, actors in SJM, the clinics, and CAJ, decided to use their work not just to support the immigrant community in Chile, but to advocate for policy change. To do this, I argue, they have engaged in a strategy of stretching or reinterpreting formal rules on immigration. What I mean by this is that actors do not completely abandon previous rules, but rather, they have defended that existing rules can be reinterpreted in a way that is consistent with the international commitments acquired by the Chilean state. Nowhere is this more evident than in the process that led to the re-interpretation of the “foreigner in transit” rule. As will be explained in more detail, the application of this rule over a 20-year period had resulted in approximately 3,000 cases of statelessness; and the organizations thus far mentioned found in this an opportunity to engage in litigation, reinterpret the rules, and force the Chilean state to change policy.

While civil society has been an important interlocutor and sometimes a government ally

(particularly during the second Bachelet government, as discussed in Chapter 3) in pursuing immigration reform, the decision to pursue policy change through the judicial branch was not initially well received by Chile’s Ministry of Interior and DEM (as will be discussed). However,

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even though government actors have shown reticence in working with civil society organizations on this front, litigation has undoubtedly advanced the immigration agenda. A senior staff member from SJM explains that litigation is an extremely important strategy, as opposed to a strategy of immigration reform, as they have been able to find in the courts an interpretation of domestic rules which is consistent with the rights they are trying to make the state accountable to:

“The judicial front has had influence [on policy change…] With our current legislation, which is useless, what have tribunals done? They have applied international treaties, such as the 1990 international convention on the rights of migrant workers and their families, that Chile ratified. And so I think that in the judicial front, the international treaties have been effective, unlike what happens on the political front. Government authorities, Interior, Foreign Affairs, the political authorities, they have not had a meeting to figure out [the application of international treaties], never, there’s been no meeting that I’m aware of, where they ask “how are we going to apply this?,” let alone how to do it for specific cases, but rather “how are we going to translate this into policy?,” which is the same as legislation, that has not happened” (Interview July 29, 2015).

As the quote illustrates, civil society actors feel that changing the government’s position through legislative action is unlikely to yield results; however, by taking specific cases before the tribunals, they are more likely to receive a ruling consistent with human rights norms and in favour of immigrants.

To this end, the organizations thus far described have engaged in what they call

“strategic litigation.” This type of litigation involves taking cases before tribunals not just with the goal of seeking reparations for those specific cases, but rather, with the goal of forcing the state to change its policies. Policy change can take place through changes in administrative criteria, and ultimately, through legislative reform. It should be pointed out that strategic litigation was not a strategy created to deal with immigration cases. Rather, this is a tradition

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carried out by legal aid clinics all over Latin America since the 1990s.7 The most important component of strategic litigation is to take on emblematic cases. According to the former director of the Diego Portales Clinic (cited in Londoño Toro 2015, 85), emblematic cases are selected for their likelihood to produce ripple effects, and in doing so, they can broaden public debates, propose legislative reforms, or generate public policy. As will be discussed below, SJM,

Diego Portales Clinic, Alberto Hurtado Clinic and CAJ adopted this strategy to bring about policy change (albeit unfortunately, change was not followed-up by a corresponding legislative reform).

The clinics and CAJ became aware of cases of statelessness when families approached them seeking assistance, such as when parents were trying to enrol a child in school, but authorities would not do so because the child was not a Chilean national. Other times the parents were simply seeking assistance in how to redress the stateless condition so their children could access benefits and services such as health and education which were only reserved for nationals of Chile. Sometimes immigrants sought advice on how to obtain regular status for a family member under a deportation order, or simply on how to obtain regular immigration status for them or members of their families. Lawyers would then realize that in some cases, some of the children had been born in Chile, but their rights as Chilean nationals were not recognized by authorities due to the “Child of a Foreigner in Transit” (Hijo de

Extranjero Transeúnte, or HET) inscription on their birth certificates. The clinics staff believed there was nothing contained either in the constitution or in DL 1094 that prohibited the state

7 For an in-depth discussion on the history of legal aid clinics in Latin America and Spain, see Londoño Toro 2015.

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from recognizing Chilean nationality in these cases. On the contrary, the way these rules were written meant that the administrative authorities were at fault for issuing the HET certificates.

Many of these children were de facto stateless, given that they could not claim the nationality of their parents (such as the case of a child born to Cuban nationals who had defected their country, or the case of a child born to a Chinese mother who already had a son in China, hence her state would not recognize a second child due to that country’s one-child policy. Even though in some instances children could in theory claim the nationality of their parents (as in most instances the parents were nationals of Peru or Bolivia, two countries which do grant nationality based on ius sanguinis), this would not constitute a solution, since as nationals of another country, children would still not have the same access to rights like health and education which they would have if registered as Chileans from birth. In addition, in all of these cases, the parents and family members had settled in Chile, having lived in the country for many years, and had no intention of going back to their countries of origin. Some parents had even been able to regularize their own immigration situation (some of them even having obtained permanent resident status), and yet their children, by virtue of being registered as

HET, were still without recourse and unable to access health, education, and other benefits reserved for Chilean citizens.

Initially, the organizations described above began presenting Nationality Claims

(Reclamos de Nacionalidad) before the Supreme Court on behalf of some of these parents and their children. According to Article 12 of the Constitution, a person may present a claim before the

Supreme Court if it can be established that their right to Chilean nationality was denied through a fault committed by an administrative authority. This type of claim can only be presented

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before the Supreme Court, as stated in Article 12 of the Constitution. For many immigrant families, presenting a nationality claim is not within their possibilities, as they must have resources to obtain legal representation, and to be present in the capital city of Santiago. Thus, as will be discussed below, nationality claims are seldom used to redress HET cases.

Searching the Supreme Court’s data base8 to ascertain how many claims had been presented after the return to democracy and up until 2014 (when as will be explained below,

DEM no longer applied the transient criteria), revealed there were 18 claims between 2011 and

20149. Since sentences before 2011 were not available through the database, the findings were complemented with studies carried out by other scholars (Fuentes et al 2016; Ribera Neumann

2002), for a total of 25 Supreme Court rulings on HET nationality claims between 1992 and 2014.

Thus, fewer than one claim per year presented in a span of 22 years (Table 5.3). From this, we can deduce this recourse was not often drawn upon as a tool to redress unrecognized nationality cases.10 The 25 claims found correspond to a total of 27 children being represented by their parents before the court (in two instances the claim was filed on behalf of two siblings who had been both registered as HETs). Children represented were born between 1964 and

2014 (2013 being the year with the most births, that is, four).

As Table 5.3 shows, of the 25 claims presented, the court sided with the parents in 20 cases, and ordered Civil Registry authorities to re-issue the birth certificates and remove any

8 Available at https://suprema.pjud.cl/SITSUPPORWEB/ 9 There were 19 nationality claims found in the database in total, but one was removed since it was not a HET nationality claim, but a claim made by a person born in a foreign country to Chilean parents (a nationality claim based on ius sanguinis, and not on ius solis). 10 For example, s et al (2016) found there were 2,843 persons registered as HET between 2000 and 2014, but only 19 claims have been presented for children born in the same period, which indicates claims are used in 0.66 percent of HET cases.

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indication of a transient parent at the moment of the child’s birth. The court did not issue a ruling in the 5 remaining cases, as these were withdrawn by the claimants. In four of these, the claims were withdrawn because DEM authorities reversed their position and voluntarily decided to rectify the birth certificates before the court made its ruling (there was no information available for one of the cases, hence the reason for its withdrawal is unknown).

Thus, out of the 25 available claims between 1992 and 2014, 24 resulted in the acknowledgment of Chilean nationality, either through a Supreme Court ruling, or through the voluntary action of DEM authorities who subsequently reasoned the parents had been incorrectly classified as transient at the moment of the children’s birth (more on this below).

Together, CAJ, Diego Portales Clinic, and Alberto Hurtado Clinic, presented 18 of the

HET 25 claims. By 2009, lawyers from the Diego Portales Clinic had tried to establish a connection with the Civil Registry, and tried to make its authorities change their position, given that the laws pertaining to nationality and immigration status could be interpreted differently by authorities when issuing a child’s birth certificate (Universidad Diego Portales 2009).

However, these efforts proved unfruitful, as Civil Registry authorities were very clear in that they were only following instructions issued by the Ministry of Interior through DEM, and that the matter was out of their hands unless DEM reversed its application of the transient rule first.

When lawyers from the clinic pressed Civil Registry authorities about what it would take for them to stop inscribing the HET annotation on the certificates, Civil Registry authorities indicated DEM would have to issue an administrative order (Oficio) indicating that the parents had ceased to be transient, meaning that the parents were in the process of obtaining a visa or that their migratory status had been resolved. Furthermore, they stipulated that they could not

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adopt a universal solution and would have to evaluate each case individually (Universidad

Diego Portales 2009).

Table 5.3: Nationality claims presented before the Supreme Court between 1992 and 2014 Case Date Date Result Sponsor Number of Year of Submitted Ruling Children birth n/a N/A 14-May-97 Agree N/A 1 1996 n/a N/A 19-Dec-97 Agree N/A 1 1964 18984-1992 N/A 16-Oct-92 Agree N/A 1 1992 2005, 8562-2009 20-Nov-09 07-May-10 Agree N/A 2 2007 6073-2009 28-Aug-09 28-Dec-09 Agree Diego Portales Clinic 1 2007 Alberto Hurtado 8808-2010 19-Nov-10 15-Mar-11 Agree Clinic 1 2009 2959-2011 11-Apr-11 17-May-11 Withdrawn N/A 1 n/a 3255-2012 26-Apr-12 22-Aug-12 Agree N/A 1 1980 7580-2012 09-Oct-12 22-Jan-13 Agree Diego Portales Clinic 1 2012 Alberto Hurtado 8008-2012 26-Oct-12 11-Mar-13 Agree Clinic 1 2006 9168-2012 10-Dec-12 11-Mar-13 Agree CAJ 1 2009 300-2013 10-Jan-13 29-Apr-13 Agree CAJ 1 2012 Alberto Hurtado 4108-2013 19-Jun-13 16-Sep-13 Agree Clinic 1 2008 5482-2013 08-Aug-13 22-Nov-13 Agree Diego Portales Clinic 1 2013 9422-2013 15-Oct-13 06-Jan-14 Agree Diego Portales Clinic 1 2000 10897-2013 30-Oct-13 14-Jan-14 Agree Diego Portales Clinic 1 2013 12551-2013 13-Nov-13 03-Mar-14 Agree Diego Portales Clinic 1 1995 2011, 14657-2013 29-Nov-13 01-Apr-14 Agree Diego Portales Clinic 2 2013 14948-2013 05-Dec-13 07-Apr-14 Agree N/A 1 2013 16044-2013 12-Dec-13 24-Mar-14 Agree CAJ 1 2010 4727-2014 27-Feb-14 19-May-14 Agree CAJ 1 1990 10397-2014 02-May-14 08-Aug-14 Withdrawn CAJ 1 2012 11654-2014 29-May-14 22-Aug-14 Withdrawn CAJ 1 2011 15736-2014 21-Jun-14 08-Aug-14 Withdrawn Diego Portales Clinic 1 1993 21967-2014 29-Jul-14 01-Sep-14 Withdrawn Diego Portales Clinic 1 2014

The negative reception by authorities left organizations of civil society with no other option but litigation. A former member of the Diego Portales Clinic explained:

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“The evolution in practice has been that before [the second Bachelet] administration, before March 2014, the criteria during the Pinera government was very different, in general there was more discretion, more restrictions towards immigrants […] and so because there was no fluid communication between civil society and DEM, the way the clinics did things was to take cases to the tribunals to force changes in criteria” (Interview August 14, 2015).

In sum, given that the legislative option is unlikely to produce results in the short term, actors from civil society opted for strategic litigation, which involves taking specific cases

(selected for their likelihood of having ripple effects) before tribunals not just with the goal of seeking reparations for those specific cases, but rather, with the goal of forcing the state to change its policies. Working together, CAJ, Diego Portales Clinic, and Alberto Hurtado Clinic have presented a number of cases before the Supreme Court defending the rights of immigrant children. Lawyers from these organizations have challenged both the constitution and DL 1094, arguing these discriminate against immigrant parents and their children, and that formal rules contained in them can and should be reinterpreted in a way that is consistent with the international commitments acquired by the Chilean state.

5.4.1 Contesting the meaning of “transient”

The analysis of the claim cases reveals the two main arguments used by organizations of civil society. The first argument involves redefining the category of transient, which they believed, could not include foreigners who had a clear intention of staying in Chile indefinitely, notwithstanding their migratory status (which could be temporary, permanent, or non-existent, as in the case of immigrants who had overstayed a visa or who had entered the country through non-sanctioned entry points).

For example, in case 9168 of 2012, CAJ lawyers argued that Article 10 of the Constitution does not specify that the parent has to be in regular migratory status for the child to be

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recognized as Chilean national. In other words, their argument went, there is no explicit rule in the constitution exempting children of parents in irregular migratory status from claiming

Chilean nationality at birth. In addition, the claim states, the mother cannot be considered a transient foreigner, since she had lived uninterruptedly in Chile for more than four years, all while trying to obtain regular status. In other words, “transient” as contained in Article 10 is not an adjective that makes reference to a person’s migratory status but refers to a person’s intention of establishing in the country indefinitely. As was documented by the legal team, the parent in this case had lived in the country for a number of years, had steady employment, and was in the process of obtaining a resident visa.

Case 14657 of 2013, sponsored by Diego Portales Clinic, presents a quite problematic case, showing that even when foreigners comply with all requirements demanded from them by immigration authorities, their children can still fall into an HET situation precisely due to the actions of administrative authorities. In this case, both parents had temporary employment visas; they were however detained on suspicion of human trafficking, and had their passports confiscated. The father was found guilty and sent to prison, while the mother was detained under house arrest, but later the charges against her were dropped. Even after the father had served his sentence and the mother had no charges against her, their passports were not returned; without them they could not apply for new visas to stay in the country and had no option but to remain undocumented until authorities returned their documents. Their first child, born after the father had served his sentence, was registered as HET by Civil Registry authorities (and so was their second child born two years later), even though it was immigration authorities who had retained the parents’ passports, effectively denying them the

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possibility of obtaining new visas, and thus, being able to provide proof of regular status at the moment of registering their children.11

The lawyers argued that in this case, administrative authorities had incorrectly interpreted the rule, mistaking the transient foreigner status for foreigner in irregular migratory status. Instead, they reasoned, Civil Registry authorities should have recognized nationality based on the parents’ “intent to reside in the residence, as is stipulated in the law.” Here, lawyers were referring to Article 10, which, without a specific definition of the term “transient,” has no basis to be construed as intending to apply to foreigners without valid immigration status (i.e. a temporary or permanent resident visa).

These examples show civil society organizations’ efforts to redefine what “transient foreigner” means. They were able to pursue this strategy for the same reason that administrative authorities, Civil Registry and DEM, had classified the children represented in these claims as HET, namely, because Article 10 of the Constitution does not provide parameters to interpret what “transient” means. Without a definition, the organizations argued, authorities must resort to other rules, external to the constitution and to DL 1094, which can provide such parameters. Following the interpretation provided by the Office of the Auditor

General in 1998, in the various claims presented before the Supreme Court, organizations of civil society argued the proper source to provide such parameters is the Chilean Civil code.

11 In fact, only the mother appears on the children’s birth certificates. The father did try to register both children, however had no passport as explained, and Civil Registry authorities, unable to confirm his identity, did not list his name on the certificates. Because the mother had kept a copy of her passport, she was able to register the children as her own. Otherwise the children may have had to remain without birth certificates, making their situation even more precarious. The passports were eventually returned to the parents, however by then there was no other recourse to redress the children’s HET status than presenting a claim to the Supreme Court.

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They point out, Article 10 of the constitution does not explicitly single out parents who do not have their migratory situation in order, regardless the cause of that status.

The second argument put forward by organizations of civil society was the application of international norms by domestic tribunals. In particular, three instruments were cited by the organizations in presenting the cases: the Convention on the Rights of the Child (particularly article 7, which deals with the right to a nationality), the American Convention on Human

Rights (article 3 on the right to a juridical personality), as well as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (article

29, which establishes that the children of immigrant workers shall have the right to a nationality, and article 44, which establishes that states shall take measures to protect the immigrant worker’s family unit). Given the nature of the claims (i.e. nationality claims), the instruments were used to frame the state’s failure to grant nationality to these children and in doing so, to have caused their statelessness. For example, in case 7580, lawyers from the Diego

Portales Clinic argued, there are specific international instruments which protect certain rights and which the Chilean state, by not registering the children as Chilean nationals at birth, is undermining such rights. This case was especially difficult because neither the mother, a

Colombian national, nor the father, a Cuban national, could pass on their nationalities the child, making him de facto stateless.

In addition to the defense of the right to a nationality, in a small number of cases the arguments referenced the principle of the child’s best interest, as contained in the Convention on the Rights of the Child. This was employed, for example, in case 9168 of 2012, sponsored by

CAJ lawyers. In addition to employing the argument based on the mother’s intention to settle in

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Chile, the defense faults authorities for failing to uphold the child’s best interest, which they are required to do as per Article 3 of the convention. The argument states that “[Article 3] has not been upheld since the [child’s] best interest is not considered, but instead, the mother’s personal situation is considered. Nothing gives the Chilean state the right to attribute [the mother’s] personal fault to a child born in this country.” In considering the mother’s status as the deciding factor, lawyers argued immigration authorities undermined the child’s rights and welfare.

The arguments presented by organizations of civil society, namely redefining the term transient and the appealing to international instruments, stand in contrast with the arguments provided by Civil Registry and DEM authorities in the majority of these cases. In some instances, Civil Registry authorities recognized that lack of parameters created complications in practice and so they had to resort to establishing their own working definitions. For example, in case 1898 of 2009, the Director of the service made reference to the absence of clear rules in the decision to give the child HET status, when she stated that “the annotation in question abides by the law, as the parents of the minor did not prove they possessed any of the legal

[immigration] categories contained in the pertinent law; and [the Director] manifests that the lack of a legal text which defines the status of foreigner in transit, has given way to regulation by way of an directive” (emphasis added). However, for the most part, Civil Registry authorities justify their position as simply following instructions from their superior, the Ministry of Interior, and declaring themselves incompetent to redress HET cases.

Supporting the Civil Registry’s interpretation of the transient rule were, of course, DEM authorities. While acknowledging that Article 10 of the Constitution is insufficient to determine the precise meaning of “transient”, they believed this should be deduced from the content of DL

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1094. For example, in case 18984 of 1992, DEM representatives argued that two children were registered as HET because their mother, who made the request before the Civil Registry, was at the time an “irregular tourist.” While DEM authorities do acknowledge that Article 10 of the

Constitution is not sufficient to provide a meaning for the term “transient,” they argued the parents were correctly classified as tourists, that is transient, because they could not provide a residence permit when they requested birth certificates for their children.

In the arguments presented in case 7580 of 2012, DEM authorities take the above argument and expand on it by resorting to the Civil Code. In his opinion, the head of DEM agreed that the constitution has not defined what must be understood by “transient foreigner,” and for this reason, the matter should be resolved by reference to external norms, contained in

DL 1094 and the Civil Code, all of which, according to the director, indicate the parents are nothing else but transient. The opinion states that first, the distinction between residents and tourists provided by DL 1094 should take precedence. Since DL 1094 establishes that a resident is a person who has a residence permit (temporary or permanent), and since the parents in this case did not possess one, they could not claim to have residence in Chile. Second, the opinion states, while the Civil Code does state that acquiring a domicile makes a person member of

Chilean society, “it could hardly be sustained that a person who has entered the country clandestinely, who has remained in such secrecy, and who has been issued a deportation order, has become a member of Chilean society.”12

12 It is worth mentioning that in this case, the father was of Cuban nationality, and if deported back to his country, he was at risk of political persecution for being considered a defector.

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This section has discussed the way in which the different parties involved in nationality claims, immigrants and organizations of civil society on one side, and government authorities on the other, contested the proper meaning of the term “transient,” given the constitution’s lack of clear parameters to interpret the term (Should it be synonymous with “undocumented”?

Should authorities consider a person’s intentions? When does a person become “transient” and when does he or she become “permanent?”). What both sides dispute is what source should be used to resolve the matter. DEM and Civil registry argue the constitution and DL 1094 can provide the proper parameters, while civil society organizations bring in other sources: the

Chilean Civil Code, the Auditor General, and international treaties and conventions. The next section will discuss how the Supreme Court evaluated these arguments and ultimately resolved the issue in favour of immigrants.

5.4.2 Who is right?

The analysis of the court’s sentences over the 22-year period reveals judges have rejected the arguments put forward by government (Ministry of Interior, DEM, Civil Registry) in favour of those advanced by organizations of civil society. Using rules and definitions outside of the

Constitution and DL 1094, the Supreme Court adjudicates that the former interpretation by

Civil Registry and DEM is invalid. Over and over, the court sides with organizations of civil society in agreeing that neither the constitution nor DL 1094 provide sufficient information to interpret the meaning of “transient.”

We can see how the court expanded the definition of transient beyond what is contained by the Constitution and DL 1094 in case 6073 of 2009. In this case, a Peruvian woman entered

Chilean territory under the Arica-Tacna Free Transit Agreement but then moved to Santiago

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and violated the terms of her border permit (which automatically rendered her into a clandestine immigrant). She later had a child, who authorities registered as HET. In its sentence, the court noted the term “transient” was not defined by legislation, hence, it was necessary to define it using the sense given in the Chilean Civil Code, which classifies persons as either transient or as having a domicile. The mother in this case was clearly a member of the second group at the time her child was registered, proven by the fact that she had a job, rented an apartment, and had also by then, obtained a temporary residence visa (under the amnesty program).13 We can see how the court abandons legal residence as the deciding criteria in favour of intention to reside in the country, regardless of whether this intention is considered legal or illegal by immigration authorities.

A similar conclusion was reached in case 8808 of 2010. As in the case above, the justices considered the that term “transient” is not defined by law, and so its meaning must be deduced from elsewhere. In this case, they concluded, the mother could not have been considered a transient person; her intention to remain in Chile was further supported by her having obtained a temporary resident visa, which had, at the time the court heard the case, been renewed. This type of reasoning displayed by the majority of the justices,14 is very interesting. What the

13 In this case, it is interesting to note the opinions of two dissenting judges, who argued that the mother should be considered a transient person because, having entered the country clandestinely, she could not have presumed her residence would be permanent, as she knew she could be deported at any time. In addition, one of these dissenting opinions referred to the 1976 Constitutional commission, arguing that the child was not a stateless person since the child had the right to Peruvian under the ius sanguinis principle. 14 Same as the previous case, there were dissenting opinions in 8808 of 2010; similarly, the dissenting justices argued the mother was fully aware her immigration status made her a potential target of deportation, and so her desire or intention to stay in Chile did not depend solely on her, but on what the relevant authorities could do.

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justices in favour conclude is that at the time the child was born, the mother for all intents and purposes had the intention to remain in Chile indefinitely; her intention is then confirmed by her subsequent actions (such as having obtained resident visas). In other words, the mother’s intention at the time she entered the country and at the time her child was categorized as HET was not tourism or a brief stay. And this intention should be considered separately from, and given more preponderance than, the actual immigration status given to the mother by authorities.

In case 300-2013, the court goes even further, arguing that the fact that the parents’ breach of a number of conditions of DL 1094 is irrelevant in determining their status as residents or transient. Thus, “the intent shown by the parents of the minor claimant to remain in the country -more than three years to the date- in addition to their petition for asylum, although an extemporaneous one, cannot lead this court, acting as a jury, but to conclude that they have remained in national territory precisely with the intent to stay in it, which has led them to obtain the status of provisional residents, thus it is not applicable to classify them as transient foreigners, notwithstanding the fact that the residency had not been legalized in accordance with the relevant normativity” (emphasis added).

This line or argumentation is repeated in all the cases listed in Table 5.3. In all of the cases with favourable rulings for the claimants, the Supreme Court sidestepped the question of whether the parent’s immigration status should have any weight when deciding the nationality of the children in question. Rather, the court made a pronouncement on the classification of the parents at the moment of the children’s birth, ruling that the parents had been incorrectly classified as transient people. The organizations of civil society helped in carefully documenting

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the parents’ permanence intention, by providing evidence that, notwithstanding their immigration status, they had not only remained in the country, but were employed, had a fixed address, had regular doctor visits, had their children enrolled in school, and had attempted to regularize their situation before immigration authorities (many of them had even obtained resident visas numerous times). Even when the parents had been unable to obtain resident visas, the cases documented all their interactions with immigration authorities, even if authorities had denied the requests, precisely because all these interactions showed the parents wanted to remain in Chile all along (and to that end, they had attempted to obtain the proper immigration status, even though authorities did not agree). In siding with them, the court struck down the standard employed by Civil Registry and DEM, which was based on the view that an undocumented or irregular immigrant cannot presume to have a status other than transient. With their interpretation, the court circumvents DL 1094, and establishes different parameters that define “transient,” namely, a person’s continuous displayed intent to reside in

Chile.

The above stands in contrast with the court’s use of international instruments, showing it is much more cautious in siding with civil society when it comes to adopting international norms in its sentencings. Of the sponsored claims which ended in a ruling (14 claims), the sponsoring organization made reference to specific international instruments that the Chilean state had violated in 10 of those, but only in 8 cases did the Supreme Court agreed to be bound by those international instruments (Table 5.4). In such instances, the only instrument applied was the American Convention on Human Rights (Article 20 on the right to a nationality). In contrast, the justices’ restrictive interpretation of the term “transient” as defined by domestic

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norms, such as the Chilean Civil Code, is clearly of more importance when siding with immigrants and their representatives.

Table 5.4: International instruments employed by the Supreme Court in Nationality Claims Case Sponsor Instrument by Sponsor Instrument by Court 7580-2012 Diego Portales Clinic ACHR (Art 20), UDHR (Art ACHR (Art 20) 15) 8008-2012 Alberto Hurtado Clinic CRC (Art 7) None 9168-2012 CAJ CRC (Art 3, 7, 8) ACHR (Art 20) 300-2013 CAJ CRC (Art 7, 8) None 4108-2013 Alberto Hurtado Clinic ACHR (Art 3), CRC (Art 7), None ICPRMW (Art 29, 44) 5482-2013 Diego Portales Clinic ACHR (Art 20), CRC (Art 7), ACHR (Art 20) UDHR (Art 15) 9422-2013 Diego Portales Clinic ACHR (20), CRC (Art 7), None UDHR (Art 15) 10897-2013 Diego Portales Clinic n/a ACHR (Art 20) 12551-2013 Diego Portales Clinic n/a None 14657-2013 Diego Portales Clinic ACHR (Art 20), CRC (Art 7, 8), ACHR (Art 20) UDHR (Art 15) 16044-2013 CAJ ACHR (Art 19, 20), CRC (Art ACHR (Art 20) 2, 4, 8), UDHR (Art 15) 4727-2014 CAJ ACHR (Art 20), CRC ACHR (Art 20) ACHR: American Convention on Human Rights CRC: Convention on the Rights of the Child UDHR: Universal Declaration on Human Rights ICPMW: International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

It is interesting to note the court did not address the fact there were other applicable instruments that the Chilean state is accountable to and meant to protect the rights of a specific group of people, such as children (through the CRC) or immigrants and their families (through the ICPMW). Rather, the justices considered the claims in a more restrictive sense, to be about the right to nationality only and not about vulnerating the rights of immigrant children. This is important because through its rulings, the Supreme Court is making immigration policy,

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however not directly acknowledging that it is doing so. Although in the end the court sided with immigrants, it was restrained in its commitment to international norms.

In sum, in deciding over nationality claim cases involving children of immigrant parents

(i.e. children with a HET birth certificate), the Supreme Court sided with organizations of civil society and rejected the arguments put forward by the government. The court agreed with civil society that neither the constitution nor DL 1094 provide enough context to interpret the meaning of the term “transient.” To provide such context, the justices resort mainly to the

Chilean Civil Code. One thing that is important to highlight is that although in the end the court sided with immigrants and their legal representatives, it did not do so by defending the rights of immigrant children as such, but rather, as persons whose right to nationality had been undermined.

5.5 Policy change and the end of the “transient” immigrant

Eventually, the pressure brought on by organizations of civil society through the

Nationality Claims, coupled with international attention on the matter, and the Supreme

Court’s continually siding with immigrants, led immigration authorities to redefine the exceptions to the ius solis principle as contained in Article 10 of the Constitution. This change began to take place by mid-2014. Beginning with Bachelet’s second administration, and with a change in DEM leadership, the claim cases were dropped as immigration and Civil Registry authorities began to voluntarily rectify birth certificates in the cases brought before the Court

(four cases in total). This is a striking difference from the way DEM had strongly opposed the transient interpretation presented by organizations of civil society. In all cases ruled before May

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2014, DEM authorities adamantly argued the parents could not document legal status in the country at the moment of their children’s birth, as parents had overstayed tourist or resident visas, had entered the country through non-sanctioned points, or had been issued deportation orders. This change in attitude by DEM authorities corresponds with the period when DEM was engaging civil society in its consultative meetings on the contents of what would be

Presidential Directive 5 and a new immigration bill (Chapter 3). DEM authorities would have had a very difficult time trying to engage civil society on the directive and bill while simultaneously fighting them on the judicial front.

Thus, a drastically different position is observed later. For example, in case 10397-2014,

DEM authorities unequivocally adopted international norms in their voluntary rectification of the child’s nationality. In this case, the child was stateless as she could not claim her mother’s

Chinese nationality.15 The DEM director noted that the Universal Declaration of Human Rights gives all persons the right to a nationality, stating that no one shall be deprived of one […], in addition, all children have the right to a nationality, as stated in Article 7 of the Convention on the Rights of the Child.” The director also noted that these international instruments, ratified by

Chile “are applicable in our legal order, by constitutional mandate of Article 5, section 2, of our constitution.”

As a result of case 21967 of 2014 (which was also withdrawn) DEM authorities issued an administrative order instructing Civil Registry of the new criteria to be employed in future cases where parents could not show proof of regular status in the country. The order refers to

15 Due to the now abolished one-child policy, China would not grant nationality to the mother’s second child.

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the absence of clear rules, “since neither the constitution nor legislation have defined the term transient, this term has to be interpreted administratively by this department.” The director suggested that authorities should interpret Article 10 of the Constitution in its most restrictive sense, meaning that the term transient should not apply to “situations that are not strictly contained in the mentioned factual framework, such as the possible migratory irregularity of the parents, which, by not being explicitly described in the conditions for exception, should not affect the right to nationality of the children and youth.” In other words, the director now believes that because Article 10 does not explicitly refer to irregular or undocumented immigrants, these cases do not constitute an exception to the ius solis principle. In this way, immigration authorities effectively dissolved the link between parent’s immigration status and their child’s right to Chilean nationality.

In a 2016 report to the Chamber of Deputies on the situation of children of immigrant parents, the DEM director pointed out his department had begun to apply international treaties ratified by Chile regarding the right to a nationality. He stated that his department “has reinterpreted the [transient] concept, construing transient foreigner as one who is in Chile in passing, without intention to reside, thus taking a restrictive interpretation of the exception given in the constitution, such as it was noted by the Supreme Court, which ruled on the matter on various claim procedures. In this way, we exclude as a relevant factor in determining a minor’s right to Chilean nationality the parents’ migratory situation, in compliance with the indications by the Inter-American Commission on Human Rights and the Inter-American Court on Human Rights” (DEM 2016a). In their response to the legislature, we can see that DEM authorities decided to abandon the old criteria based precisely on the arguments advanced by

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the organizations of civil society. First, that for the purposes of a minor’s right to Chilean nationality, the parents cannot be considered transient for failing to have regular residence visas, and second, that the Chilean state must be in compliance with its obligations on the matter acquired through international instruments.

This change did not occur smoothly, however. As explained by a former Diego Portales

Clinic lawyer and DEM staff, “It was interesting that when the first cases were presented, or one of the first ones, by the human rights clinics in 2010, I remember in that case the court sided with us, they said ‘yes this child should be registered as Chilean, not transient,’ but the problem was that we got a favourable ruling, but Civil Registry didn’t want to change their criteria, didn’t want to comply with the court’s ruling, and so we engaged in a dialogue, in meetings, to see how that could be achieved” (Interview August 14, 2015). In the aforementioned report to the Chamber of Deputies, the DEM director explains that it was necessary to work alongside the

Civil Registry to educate officials on the new registration criteria and thus ensure that no more

HET cases result from a lack of awareness of the new administrative interpretation.

The decision to adopt a new interpretation was also partly motivated by international pressure. A former director of the Diego Portales clinic indicated that DEM authorities decided to change the criteria (i.e. the meaning of “transient”) and avoid more statelessness cases, as this was likely to result in a trial before the Inter-American Court of Human Rights (Lawson 2017).

There was an important precedent to fear this outcome; in 2005, the Inter-American Court ruled against The Dominican Republic, finding that the state had violated the right to a nationality of

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two children born in the country.16 Chilean authorities were trying to avoid a similar situation and having to justify cases of statelessness resulting out of its domestic norms. A high-ranking

DEM official explained that the new policy on HET cases was adopted in preparation for future exam on the International Convention on the Protection of the Rights of Migrant Workers and their Families (Interview August 27, 2015). In its first convention examination, Chile was specifically criticized for cases of child statelessness (UN Committee on the Protection of the

Rights of All Migrant Workers and Members of Their Families 2011), and so authorities felt that the new adopted policies would reflect positively on this area of concern.

Realizing that there were thousands of cases where the right to Chilean nationality had been denied over the years, organizations of civil society continued to push for a massive rectification effort by the state beyond the specific cases presented before the Supreme Court and individually rectified by the authorities. To this end, lawyers from the Diego Portales

Clinic, the Alberto Hurtado Clinic, and CAJ, formed a taskforce to present what they term a

“Collective Nationality Claim,” meaning a claim submitted on behalf a group of individuals, as opposed to one in specific. This effort first required identifying who the individuals were and where to locate them. Thanks to an access to information request, the team found that the majority of HET cases had been registered in the northern regions of Arica & Parinacota and in

Tarapacá. In an effort that took many weeks of fieldwork, they were able to contact and identify

161 individuals who were then represented in this collective claim (Lawson 2017; Fuentes et al

2016). While the goal was to seek reparations for the 161 individuals represented, the more

16 In Yean and Bosico Children vs. Dominican Republic, the Inter-American Court found that the Dominican government undermined the children’s right to nationality by restricting the ius solis principle. Authorities claimed the children could not obtain Dominican nationality due to being of Haitian ancestry.

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ambitious goal was to force the Chilean state to enact measures to identify and recognize the nationality of thousands of individuals who had been registered as HET between 1995 and 2014.

In their petition to the court, the lawyers explained, “the claim hereby presented is not exhausted by the 161 individual cases, but it seeks to mend this error for all persons found in the same situation, meaning all persons whose right to a nationality was denied. In other words, given the state’s acknowledgment of the violation of the right to a nationality, the state should redress the situation of all the persons who were affected by the non-restrictive interpretation of the [transient] criteria.” The court responded that it could not force Civil Registry authorities to amend the certificates to implement this action on people not represented; however Civil

Registry authorities agreed to rectify the certificates of those individuals for which it had an updated address.

The task of amending the certificates for thousands of HET individuals would be a truly difficult logistical endeavour. There would be a number of problems, as explained by DEM

Director in his report to the court. The main challenge would be to verify that the thousands of individuals registered as HET would in fact want to exercise their right to Chilean nationality; in other words, while DEM authorities knew the names of these individuals, it would be unethical to amend the birth certificates without the knowledge and consent of the individuals in question. To this end, state authorities, supported by organizations of civil society and the

UN Refugee Agency launched the campaign “Chile Recognizes,” aimed at informing the public about the new criteria and identifying individuals who had been registered as HET with the goal of informing them about their rights. In spite of a collaborative effort by state and civil society actors, the logistical challenges in identifying individuals have made it extremely

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difficult to redress the majority of the HET cases (DEM 2016d). Two years after the program had been implemented, authorities stated that approximately 400 certificates had been rectified, which still leaves thousands of individuals without their right to Chilean nationality. Given the time that has passed since their births, coupled with the fact that the parents of these children were immigrants, this could mean that the families returned to their countries of origin, or still live in Chile but their conditions are so precarious they have no way of being reached or finding out about the program.17

In short, the efforts by organizations of civil society did produce a change in policy at the administrative level and led to a redefinition of the exception to the ius solis principle as contained in Article 10 of the Constitution. By late 2014, it had become clear to government authorities that continuing the HET practice would mean they would continue to lose cases before the Supreme Court and in a not distant future also lose a case before an international tribunal (i.e. the Inter-American Court of Human Rights). Not only did DEM authorities agree to put an end to the HET practice, but they also publicly committed to doing so retrospectively.

Unfortunately, this last would prove to be a much difficult accomplishment, leaving without remedy thousands of individuals affected by this policy.

5.6 Conclusion

This chapter accomplished a number of things. First, similar to the previous chapters, it explains how it has been possible that Chilean institutions have adopted policies less restrictive

17 As explained in a government report, many of the individuals who were tracked and contacted by authorities were not even aware they could obtain Chilean nationality and were surprised to find out that the procedure was very straightforward and at no cost to them (DEM 2016).

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towards immigration in a context where the main piece of legislation remains extremely restrictive and unwelcoming of foreigners. The chapter has argued that organizations of civil society have been able to push for policy change that directly contravenes DL 1094 by arguing that authorities had incorrectly defined the term “transient,” and in doing so, they had undermined the right to Chilean nationality (and its corresponding privileges) of thousands of individuals. In fact, actors from civil society used the very same argument that government authorities used to deny the right to nationality, namely, that the Constitution does not provide parameters to interpret what “transient” means. This means that the organizations discussed in this chapter have bypassed DL 1094 as well as the Constitution, and rendered their regulations without effect, by replacing them with other rules which provide other meanings and interpretations. This is important because this approach has resulted in government authorities adopting new policies on immigration but without altering DL 1094. Instead, through the adoption of low-rank administrative orders, state actors have resolved the problem of an outdated and workable legislative framework.

Second, the chapter has discussed how the judicial branch has sided with organizations from civil society in expanding the rights of immigrants, specifically the right to a nationality.

Here, it is important to note that the court has been both progressive in its sentencings as well as somewhat conservative. It has been progressive because it has contradicted DL 1094, not only by adjudicating that the right to a nationality had indeed been undermined, but in essence, by ruling that the immigration status of the parents and the category given to them by immigration authorities were irrelevant factors in establishing someone’s nationality under the ius solis principle. However, the court was also cautious, in that it did not make robust use of

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international instruments that were created to protect the rights of immigrants and their families. Instead, the court opted to redefine the term “transient” by referring to other domestic norms.

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6. Conclusion: tensions and limits of “building around” institutions

As this study has argued, policy actors have been able to advance pro-immigrant policies in post-authoritarian Chile in spite of institutional constraints, thanks to a process of

“building around” the formal institutions which were devised precisely to have the opposite effect. As explained in the previous chapters, DL 1094 was not conceived as the foundation for a policy on immigration in the true sense, but precisely for the opposite reason, to maintain foreigners away, and consequently, for its regime not to consider creating real immigration policies, that is, policies which guide how foreigners are to become part of the receiving society.

DL 1094 was meant to serve the purposes of a different set of political actors, namely, to securitize immigration policy in the name of national security.

Chile has by now come a long way from its circumstances back in 1975, when Pinochet passed DL 1094 by presidential decree. The country is quite different not only in the most obvious sense, that is, in the change from an authoritarian regime to a democratic one, but in terms how immigration trends to the country have changed as a result of its political and economic successes, such as they are. The mindset of the cold war is long gone, and the phenomenon of immigration is no longer securitized by political actors as a matter of national defense against communist ideologies. Chile is now considered the economic and political miracle of Latin America, as opposed to a country in turmoil under a military regime capable of the cruelest crimes against its own citizens (thousands of whom were forced into exile).

European migration flows from the post-war era dried up a long time ago, and in their place,

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the new migration by nationals of other south American countries drives the increases in Chile’s foreign-born population. Political events and economic conditions in the region continue to fuel people’s desire to abandon their countries for better prospects elsewhere. As traditional destination countries such as the United States adopt more cruel and more restrictive immigration policies, and as immigrants face more and more dangerous conditions (such as kidnappings and extortions) in their quest to reach those destinations, immigrants in Latin and

South America will instead turn to countries like Chile, a country which they can reach without

(for the most part) risking their lives, which can absorb immigrants into its labour market, and which offers prospects of settling and becoming part of its receiving society. Given all this, we can expect increases in Chile’s foreign-born population in the near to mid-term future.

Yet, political actors do not seem interested in repealing DL 1094, which more than 40 years after coming in effect, has become unworkable. Some efforts have been made to pass new legislation (a bill was drafted in the first Bachelet administration, one was sent to congress during her second term, and two bills were sent to congress during the first and second Piñera governments respectively), but they have all failed thus far. As if unaware of these developments, immigration continues to increase and to diversify, and immigrants settle in

Chile, establish lives, and somehow, make lives better for their families and for the communities in which they have been able to settle.

In this scenario, lack of will by political parties has not meant a complete lack of progress. As I have shown in this study, there have been advances in adopting pro-immigration policies. While these may not have the rank of immigration reform (i.e. a repeal of DL 1094), the changes have been important because they have slowly begun to dismantle the institutional

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constraints inherited from the authoritarian regime, through a gradual process of building around the formal institutions. This slow process has been driven by actors who without having direct authority over immigration policy, have nonetheless been forced to step into this policy area by necessity; in their common day-to-day operations, they find that either because of the absence of policies or because of the problems that DL 1094 creates for them, their intervention is needed to fill in the gaps. In so doing, they create immigration policy by stealth. They subsume immigration policy under their respective areas of authority and frame policies as consistent with other policies in such areas.

In Chapter 1, I discussed theories that explain immigration policy and argued that we need to include a theory of institutional change in order to understand the development of policies in post-authoritarian Chile. Statist theories drew attention back to the phenomenon of immigration from a purely voluntary act by individual people motivated by economic considerations, to a political act delimited by states. This opened the door for political scientists to advance factors that drive immigration policies. Primarily, statist approaches see immigration policies as the result of states as looking for a trade-off between two opposing goals: protecting their sovereignty and being part of the international system of trade.

Following statist approaches, interest-based approaches no longer treat the state as a unitary actor. The central puzzle for interest-based approaches is the question of why states cannot seem to close their borders to unwanted or undesired migration. The answer is that immigration policy reflects the interests of those groups in society that have incentives and resources to organize around this policy area, namely those who would stand to benefit from immigration (industries that depend on a supply of immigrant workers, and ethnic groups).

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Those who are more likely to see immigration as a drawback are precisely less likely to have the resources to organize against it. Chapter 1 also explored how immigration policy is produced in liberal states. On the one hand, liberal states approach institutions push/pull towards policies of opening, for example the international economic regime, international human rights regime, and any domestic institutions that revolve around the protection of individuals (regardless of nationality or origin). On the other hand, liberal states also produce policies of restriction, because of pluralism/representative democracy and nationhood.

My study takes this group of theories and expands, by drawing from the literature on institutional change. The central question addressed in this study, namely, how have policy actors found solutions to the problem of “the new migration” while constrained by “the same old institutions” requires an account of institutional change because in the case of Chile, the formal institutions should dictate that policies remain restrictive about immigration. I have argued actors have been able to alter their institutional reality and establish alternative solutions in a slow, gradual process, the result of the accumulation of small changes over time, as actors exploit ambiguities and gaps in institutions and “build around” with practices that are more open to immigration.

I have also argued that advances have been made possible because actors have been able to depoliticize immigration policies. This happens when policy actors work within systems that are closed off from the public, and where they are able to control the beliefs and values associated with a policy. Actors working on immigration policy have been able to depoliticize advances in immigration policy by presenting policies as benefiting society as a whole rather than only an “undeserving” group such as immigrants.

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Chapter 2 provided a historical-institutional account of immigration and institutions in

Chile, highlighting changes in immigration trends in the 1990s after the country returned to democratic rule. Prior to the military coup in 1973, the desirability of immigrants was guided by racist considerations. Europeans were considered a superior race, highly desired for the purposes of nation-building. Corresponding to this period are a laws and initiatives meant to attract European settlers. Institutionally, immigration was for the most part responsibility of the

Ministry of Labour. This changed with the arrival to power of Pinochet in 1973, who employed immigration policy as a tool to protect the nation from what the military regime considered undesirable immigrants, that is, those who could “spread” communist ideologies. At this time, immigration became responsibility of the Ministry of Interior, effectively securitizing immigration. In the period after the return to democracy, Chile is once again open to immigrants, who are now considered desirable in terms of their capacity to become part of the labour market. While this shift in the way immigration is perceived has not seen a corresponding institutional change, a number of policies that ensure immigrants’ access to social rights have been adopted.

In Chapter 3, I identify the first of three venues where immigration policy has been advanced, namely, central government. The main actors have been the social ministries (Health,

Education, Social Development, and Housing) along with DEM. I argued that first, actors are recruited to either work on this policy area where they have no formal authority, or if they do

(such as DEM does), they acquire responsibilities beyond their mandate. Even though actors do not have the power to alter formal institutions (for example passing new legislation, changing the formal powers of actors as established by DL 1094, or establishing a new body such as a new

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Ministry of Immigration), they do have the capacity to work around them and create new policies, through the deployment of informal (not sanctioned through immigration legislation) instruments, such as presidential directives. These instruments, although they do not carry the authority which legislation does, are nonetheless perceived by actors as norms to abide by, and therefore are key in understanding why pro-immigrant policies are adopted by the various actors involved in creating immigration policy. area.

Chapter 4 moves on to discuss the policy-making process as it has taken place in municipal governments. Once again, municipalities are actors which do not have formal authority in the creation of immigration policy, nonetheless, have been central actors in this process since about 2010. Municipal authorities are much closer to the “day-to-day” life of people, immigrants included, and so they have no choice but to create policies that fill in the gap where central government has yet to step in. Municipal actors, thus, create institutions and policies from a bottom-up approach. Under the mandate of community development, municipal governments have created Immigration Policy Units, or IPUs, in charge of establishing policies for their respective localities, and following up with programs that support regularization for immigrants, provide them with access employment and social services, seek to influence society’s views on immigration, as well as engage in policy-learning and cooperation with their IPU counterparts.

Lastly, Chapter 5 focuses on the policy-making process in the judicial branch, as exemplified in changes to nationality rules. Here, actors working through the courts have exploited ambiguities in the rules and in this way have been able to bypass DL 1094 and expand the right to citizenship to previously excluded immigrants. By engaging in strategic litigation,

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organizations from civil society have forced the Chilean state to reinterpret nationality rules to resolve thousands of cases of statelessness. Agreeing that an immigrant who has settled in Chile cannot be considered “transient,” regardless of the circumstances under which that person immigrated, the Supreme Court has given parameters to a previously vague term, and in this manner, recognized the right to nationality of individuals previously miscategorized.

From the above, we can arrive at three findings about the policy-making process in the three venues analyzed. First, in each of the three venues, there is a group of actors who have no formal authority over immigration policy and yet have acquired a level of responsibility and created policies that effectively put boundaries around DL 1094. In central government, the social ministries have created policies that provide access to social rights for immigrants

(education, health, and housing), even though DL 1094 does not include access to such rights in its framework. DEM, which does have authority as per DL 1094, has however increased its area of influence beyond its formal mandate, to become the central actor in charge of mainstreaming immigration policy, as well as becoming the main state interlocutor with civil society. Similarly, municipalities, having no formal authority on this area and without instruction from central government, have been at the forefront not just providing relief, but going beyond a merely reactive approach to one that is more institutionalized. As Chapter 4 explored, Immigration

Policy Units in municipalities seek to create policies on immigration with the goal of integrating immigrants into their new communities, changing nationals’ perceptions about immigration, and importantly, establish themselves as the locus responsible for establishing immigration policy at the local level. For their part, civil society, working through the courts, has placed

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boundaries around nationality regulations by challenging previously accepted definitions in use by the bureaucracy and civil servants on who is excluded from the ius solis regime.

Second, actors in these venues are recruited into immigration policy because DL 1094 has either created problematic situations or because it does not offer policies at all. In other words, the inaction on the part of political parties to produce immigration reform leaves actors in these three venues with no choice but to step in. This method of being recruited into working on immigration policy gives rise to a particular way of looking at policy area, arising from each group of actors’ particular venue. In central government, actors frame policies as “modernizing the state” (meaning policies are meant to draw Chile out from its backward views on immigration imparted thought DL 1094, or more practically, by establishing modern processes and procedures to manage immigration) and “leveling the field for everyone” (meaning that immigration policies should not provide special treatment to immigrants but only seek to remove barriers for them). Actors in municipal government employ a similar framework to justify policies, avoiding what I have termed the “window for immigrants” policy model.

Similar to their counterparts in central government, municipal actors worry that by making certain services and benefits available to immigrants only, they may cause tensions with other groups in society. To avoid this, actors see their role, and the policies they create, as essentially removing barriers that could cause immigrants’ marginalization or discrimination. Actors in civil society working through the judicial branch frame the issue of exclusion from the ius solis regime (and immigration in general) as an issue of human rights, arguing that such exclusions are unacceptable in modern-day Chile, where democracy and the rule of law have become the

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norm, and that any policies based on the idea that immigrants are a priori a danger to Chilean society are counter to these modern values.

The third finding revolves around the strategies employed by actors, which involve advancing policies through a gradual process of building around the formal rules, in this instance DL 1094. Actors do not dismantle existing rules, but instead bypass, reinterpret, and build around them. In central government, actors have adopted presidential directives as policy foundations, effectively replacing the spirit of DL 1094 with a different outlook on immigration, one which sees immigrants as contributing positively to their new society, and which also presents Chile as a country open to immigration (accepting of immigrants and their differences, and in line with international norms about human rights as they pertain to immigration). The social ministries also have worked on establishing their own immigration task forces and working groups, and later on working side by side with DEM through the Immigration Policy

Technical Council. At the municipal level the process of working around the old institutions is seen in the creation of a new institutionality, the Immigration Policy Units, which seek to establish policies on immigration for local governments where none existed before. Actors advancing policies through strategic litigation quite specifically engage in a process of rule reinterpretation, such as the “foreigner in transit” category, forcing the state to adopt a different definition, but without entirely replacing the previous legal framework. This approach of working around, building around, or reinterpreting rules, indicates how actors are can advance immigration policy by stealth. Without directly confronting the issue of immigration reform, actors promote policy change through administrative changes, isolating themselves from broader debates on immigration.

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Lastly, this study on immigration policy development in post-authoritarian Chile has implications for other policy domains. As discussed in Chapter 1, immigration policy in modern-day liberal democracies is subject to tensions when policy debates and decisions are open to a wider set of actors. Advancing (controversial) policy through depoliticized technical venues could explain change in other policy domains where actors would seem to be constrained by formal institutions, especially when the formal rules (for example constitutions or other types of legislation) may not be easily changed due to political constraints, as is the case of DL 1094 in Chile. In this sense, a “building around formal institutions” model of change could explain why the unexpected policy outcome would take place, when existing formal institutions or rules do not prohibit a given outcome, but rather, they are vague or silent about policies. For example, DL 1094 is silent about immigrants’ social rights, which has allowed new policy actors to reinterpret the rules and build new institutions and policies which do deal with these issues.

6.1 Continuing tensions in the advancement of Chilean immigration policy

The gradual approach to policy-making described thus far has a couple of advantages.

First is the potential for policy innovation, as policies have a narrower scope (limited to actors’ area of authority). Actors can adopt new policies and discard more easily those that are not effective as they do not require support at the national level. A second positive aspect is that this decentralized approach has the potential to produce policies that are grounded on the knowledge and needs from actors that will actually implement them. This is perhaps more visible in the way the municipal governments have participated in this policy area

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(compounded by the decentralization of health and education policies in Chile), but also in the policies that actors in the ministries and DEM have advanced. Although this gradual approach has allowed actors to come up with solutions and avoid policy inaction, there are certainly problems that it does not address and which need to be resolved. As discussed in Chapter 1 section 1.3.2, when constrained by institutional legacies of the authoritarian regime, political actors have compromised in order to advance their goals; however, this compromise is always to the detriment of something else. In general, political actors in Chile compromised dismantling the economic and political legacies of the regime, in favour of what they felt was a viable, albeit incomplete, democracy. Incapable of passing new legislation on the matter, actors working on immigration policy have had to compromise and create work-around solutions to the absence of policies. But in this trade-off, they have compromised the creation of a national immigration policy, one that is accompanied by institutions that promote cooperation across the different levels and branches of government, and supported, of course, by new legislation.

Given the long list of urgent reforms that need to take place, it is possible that political actors have become somewhat complacent on immigration reform, precisely because policy actors are managing the challenges brought on by the “new immigration” without their support.

However, one positive aspect of the policies discussed in chapters 3, 4, and 5 is that they have created a kind of minimum floor, and any future legislation will have a very hard time getting passed while being dismissive of the advances made in this period.

Another potential pitfall of this approach is that actors could end up working in silos and fail to share information and resources. Thus far, it is clear actors working in the three venues analyzed have created bridges and cooperate with one another. However, I would argue

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cooperation is highly dependent on actors’ individual histories (for example, many of the participants had dual careers as experts and had worked in government, or as experts and as staff in organizations of civil society). However, these connections should ideally be supported by institutions that encourage cooperation, rather than personal histories or individual incentives (which are in no way a negative aspect, but intersectoral cooperation should not depend solely on them). One last negative aspect of this approach which I will mention is the fact that immigrants’ rights may not be recognized universally. This is especially the case for local governments, where municipalities with more advanced and institutionalized policies are in a position to uphold more rights and offer more protections than those with more incipient or non-existing policies.

Finally, it is worth mentioning, this method of advancing policy, this “building around” formal institutions model, while helpful in bringing about policy change in a constrained policy scenario, could nonetheless cause policy reversals due precisely to its strategy of avoiding or bypassing formal institutions. First, there is the obvious problem that “the same old institutions” remain formally unchanged. However more importantly, other actors seeking different policy directions (for example policies less open to the entry and settlement of immigrants) may also employ this approach, especially if they wish to avoid the politicization or resistance to change that would come with legislative debates or the difficulty of getting immigration reform approved by the legislature. Given that since 2013 two immigration bills

(one put forth by a centre-left government and the other one by a centre-right government) have died either in congress or in the senate, and a third one is being subjected to numerous revisions by the senate as of the moment of writing, it is not unlikely that opponents to progressive

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policies discussed in this study may adopt the depoliticized approach and bring about policy reversals.

6.2 Avenues for future research

One area for future research which my study has identified is the making of immigration policy at the local or municipal level. Too much focus on polices adopted by governments at the national level (or inaction in adopting any policies at all) can lead us to have a limited view of what policies are out there and who is responsible for them. National policies are very important of course, especially since it is national governments which set the conditions for the entry (and stay) of foreigners. However, as higher levels of government adopt more restrictive policies and in general restrict immigrants’ rights and supports, interventions by subnational governments become more important. Municipalities are in a difficult situation because at the local level, people cannot be “turned away.” What I mean by this is that local authorities and their institutions have to deal with issues that immigrants may face (such as homelessness or precarious housing, access to basic education, access to health, access to transportation, etc.) that are caused by poorly designed immigration policies or the lack of them. Chile is an excellent case to study the involvement of local government in immigration policy because of its history of decentralizing social services, as was discussed in Chapter 4.

Future work could be comparative in nature (for example, by selecting similar cases where social services have been devolved to municipalities, or dissimilar cases where they remain controlled by higher levels of government. Work on municipalities can also explore the issue of policy innovation and policy learning as discussed above. First, municipalities are in a position

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to innovate and discard policies that do not prove to be effective, as policies are less costly to implement than national policies and they require buy-in from a smaller group of actors. And second, future work can also address whether municipal actors learn from each other and avoid pitfalls in advancing their policy agendas.

This links with a second avenue for future research, namely, exploring the role that bureaucracies and civil servants play in the creation of immigration policy. As this study has shown, this group of actors has a great deal of influence in setting the tone for policy. Already an important body of work in the discipline of Social Policy has argued that bureaucrats are policy-makers, as they have discretion and autonomy in applying policy (Hupe and Hill 2015,

Lipsky 2010). Specifically, Lipsky (2010) notes how bureaucrats make policy as they create devices and routines to deal with uncertainties. His work resonates with the argument advanced in this study, namely, that policy actors have to respond to vague or absent rules, and in so doing, advance immigration policy. Potential work in this area could compare how bureaucracies and civil servants in other countries have played (or failed to play) a significant role is advancing immigration policy. The Chilean bureaucracy and civil servants are a very professionalized corpus of state actors, much more akin to a Weberian bureaucracy than in other Latin American countries (as illustrated by the backgrounds of interview participants). In addition, as this study described, there are many linkages between state actors and those working outside the state. In this sense, a comparison with Argentina, which has less professionalized bureaucracies and civil service, could be quite useful in elucidating the relevance of this group of state actors in advancing immigration policy. As mentioned in

Chapter 1, Argentina passed immigration reform in 2004 (repealing legislation very similar in

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nature to DL 1094). However, it appears to be the case that civil society there worked directly with the president in pushing for reform, rather than going through other state channels (such as ministries or courts). A comparative study of this nature could assess the effect of the linkages between civil society and state actors, and the level of professionalization of state actors, in creating immigration policy.

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Appendices

5.7 Appendix A: Interview Participants

Table A.1: Interview participants

Interview Date Interview Participant Category Position/Profession Location 1 9 July, 2015 Santiago, Immigration expert Academic (lawyer), civil society Chile consultant 2 10 July, 2015 Santiago, Immigration expert Academic (sociologist), civil society Chile consultant 3 15 July 2015 Santiago, Immigration expert Academic (sociologist), civil society Chile consultant 4 23 July, 2015 Santiago, Member of civil society Director of civil organization that Chile serves immigrants 5 24 July, 2015 Santiago, Immigration expert Academic (sociologist), Chile government consultant 6 28 July, 2017 Santiago, Central government Former executive branch staff Chile member (lawyer) 7 29 July, 2015 Santiago, Member of civil society Director of civil organization that Chile serves immigrants 8 31 July, 2015 Santiago, Member of civil society Director of civil society Chile organization that serves immigrants (lawyer) 9 6 August, 2015 Santiago, Central government Former executive branch staff Chile member (lawyer) 10 6 august, 2015 Santiago, Central government DEM staff member (sociologist) Chile 11 7 august, 2015 Santiago, Municipal government IPU Coordinator (sociologist) Chile 12 10 August, 2015 Santiago, Central government Ministry of Social Development Chile staff member (sociologist) 13 12 August, 2015 Santiago, Member of civil society Immigration expert/consultant to a Chile civil society organization (lawyer) 14 12 August, 2015 Santiago, Member of civil society Civil society organization staff Chile member (lawyer) 15 12 August, 2015 Santiago, Member of civil society Civil society organization staff Chile member (political scientist) 16 14 August, 2015 Santiago, Central government DEM staff member Chile (lawyer/sociologist)

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17 17 August, 2015 Santiago, Municipal government IPU coordinator Chile 18 18 August, 2015 Santiago, Immigration expert Researcher/Academic (sociologist) Chile 19 18 August, 2015 Santiago, Immigration expert Immigration lawyer (private Chile sector) 20 19 August, 2015 Santiago, Central government Ministry of Housing staff member Chile (social worker) 21 24 August Santiago, Central government Ministry of Education staff Chile member 22 26 August, 2015 Santiago, Central government DEM staff member (lawyer) Chile 23 26 August, 2015 Santiago, Central government DEM staff member (public Chile administration) 24 28 July, 2015 Santiago, Civil society Journalist Chile 25 31 July, 2015 Santiago, Central government Ministry of Foreign Affairs staff Chile member 26 1 September 2015 Santiago, Central government Ministry of Health staff member Chile 27 6 September 2015 Calgary, AB Central government Former executive branch staff (telephone member interview) 28 8 October 2017 Calgary, AB Civil society Founder of an organization of civil (telephone society, academic (political interview) scientist)

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5.8 Appendix B: Ministry of Interior: Subministry of Interior Organizational Chart

Ministry of Interior and Public Security

Cabinet Ministerial Auditing

Subministry of Interior

Cabinet Internal Auditing

Civic Participation Unit

Interior Government Service

Regional Governments

Interior Admin and Public Legal Carabineros Investigations Government Finances Security

International Official Safe Risks & Exonerated DEM State Social Action Data Connectivity Relations Gazette Stadium Emergencie Sharing and Persons Network s Analysis 246

Source: Departamento de Interior y Seguridad Publica: organigrama. Available subinterior.cl/organigrama