IACHR Concerned About Migration Reforms that Restrict the Right to Asylum in Chile

May 7, 2024

Washington, D.C. – The Inter-American Commission on Human Rights (IACHR) is concerned about the approval in Chile of Act 21,655, which amends Act 20,430 about refugee protection and Act 21,325 about the status of migrants and other aspects of immigration law. Act 21,655 restricts real, effective access regarding the right to seek and be granted asylum. The IACHR calls on the State of Chile to guarantee the rights of all individuals in human mobility contexts, in compliance with its international obligations.

Act 21,655, which went into force on February 24, entails provisos that would restrict various rights of individuals in human mobility contexts. The IACHR is particularly concerned about the introduction of an initial validation stage in proceedings to recognize refugee status. This change allegedly seeks to reject, after an interview, unfounded requests, like those that are considered fraudulent or believed not to fulfil refugee status criteria. The new law allows this to be done without an administrative authority of competent jurisdiction issuing a resolution about the merits of the request, simply by stating that the individual who filed the request does not require international protection.

Along similar lines, the IACHR is concerned about rules that restrict the chances of requesting asylum only to individuals who arrive in Chile directly from the territory where their life or liberty is at risk, about the seven-day period to request asylum after arrival in Chile, and about the extension of territorial limits for Chilean authorities to be able to send someone to the country's borders without implementing an expulsion procedure. These regulations would prevent entry into Chilean territory to access proceedings for the assessment of international protection needs.

Chile's new law reflects a restrictive context to access international protection proceedings and does not include safeguards for due process, including in proceedings aimed at expelling the affected individuals.

The Inter-American Court of Human Rights has stated that, when resolving manifestly unfounded or abusive requests for asylum where there is no need for international protection, States must respect minimum safeguards, like holding a relevant hearing, having an authority of competent jurisdiction establish that the request is indeed unfounded or abusive, and enabling review of negative decisions before the individuals in question are expelled. These requirements reflect the serious consequences that may come with mistakes.

The Commission stresses that, while States have the power to set their own migration policies, these policies must be consistent with the need to protect human rights, including the right to seek and be granted asylum. The IACHR further notes that, in line with the Inter-American Principles, all individuals have the right to due process in all legal proceedings concerning restrictions or recognitions of their rights. The right to seek and be granted asylum must therefore be assessed along with the rights to a fair trial and to judicial protection.

To ensure that the right to seek and be granted asylum is effective, the IACHR calls on the State to allow entry into Chilean territory, with whatever documentation the individual has at hand; to guarantee access to migration and international protection proceedings; to enable specific protection mechanisms to prevent rights violations; and to enforce the principle of non-refoulement.

The State noted that this initial stage in proceedings will allow the rejection only of manifestly unfounded requests, preserving the institution of asylum and ensuring that it is only used to enable international protection. The State said that these measures are being adopted amid an exponential increase in the number of requests, many of which are baseless. This increase has allegedly affected the effectiveness and response times of the whole process.

The State said that this reform includes safeguards and arbitrariness-control mechanisms. Manifestly unfounded requests will be ruled inadmissible through a well-founded resolution issued by the head of the National Institute of Migration, based on a technical report drafted by technical staff at the Refugee Status Recognition Committee.

Finally, the IACHR encourages all States in the Americas to address mixed migration flows with a comprehensive regional perspective, one that enables them to work toward a form of migration governance that takes into consideration every country's demographics and its social and economic reality.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 093/24

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