Right to stay?: A study of migrants' "settlement right" in Argentina/¿Derecho a quedarse?: Un estudio sobre el derecho al arriago de los migrantes en Argentina.

• Author: Scuzarello, Esteban Octavio

INTRODUCTION

Migration is at the very cornerstone of the history of Argentina. According to the Argentine Census of 1914, a quarter of its population was immigrant (Tercer Censo Nacional, 1914). Both World Wars found Argentina as a safe and prosperous country for those people who were suffering and in need of finding a new place to be in, especially people from Europe. Many scholars have claimed that one of the many reasons why so many immigrants came to the country was related to its legal facilities and the possibilities of easily acquiring a permanent residence permit or, even more, Argentine citizenship (see Hines, 2010; Denardi, 2017).

In September 1812, the authorities of what was called the First Triumvirate released a decreet welcoming immigrants from all over the world (Pizzonia, 2017:77). However, the Argentine Republic, as the political unit that is known today, did not emerge until 1852, when the provinces finally agreed on becoming one political entity under the same constitution and laws. This is an important element because it shows how Argentina, even before being the state we are familiarized with today, was already a country keen on welcoming foreigners. The political entity that was born in the 1850s, did so in a context that was already embedded in an open policy towards migration. An aspect that, even with ups, downs and nuances, largely inaugurated the Argentine tradition towards migrants, refugees and, more generally, people on the move (Seixas, 2008). Evidence of that is the preamble of the Constitution, which reifies: "to all men of the world who wish to dwell on Argentine soil"(Constitucion Nacional Argentina, 1994) (1).

However, lately, there has been a series of decisions taken by the Argentine Supreme Court of Justice that have jeopardized these features and, presumably, violated long-standing migrants' basic rights. For example, in December 2021, the Supreme Court confirmed in Qiuming Huang v. National Directorate of Migration the decision of a lower camera to deport Mr Huang, a Chinese migrant who irregularly entered the country in 2014, after "interpreting Argentina's Migration Law in strikingly a restrictive manner" (Odriozola, 2022). Mr Huang did not have any criminal felony on his record, he has set up a business in the country, he has continuedly paid his taxes and social security contributions, he was learning the language and he had a well-established social network including children, a wife, and friends. Nonetheless, the Supreme Court understood that instead of ordering the regularization of his status, he should be expelled from the country immediately. Stories like Mr Huang's are far from being an exception.Since the last semester of 2021, the Argentine Supreme Court has confirmed more than a hundred expulsions of people with a long-standing migration history in the country with irregular migrant status (Axat, 2022).

According to Argentine law, migrants without family members (understood as parents, partners, minor children, and/or handicapped children under their legal supervision) in the country, and without the possibility of alleging humanitarian reasons for their stay, could be expelled from Argentina if found guilty of crimes typified under articles 29 and 62.b of the Migration Law (Congreso de la Republica Argentina, 2003).

Yet, many migrants have neither affective nor social connections with their home countries. Some migrants might move to Argentina, spend their whole lives there, work, socialize and settle themselves without acquiring citizenship. As with Mr Huang, they might have lost contact with their home country, established new connections in Argentina, and adopted it as their new home. Nevertheless, according to the current legal framework and recent decisions of the Supreme Court, they could be still subjected to expulsion and find themselves back in a country that has become unknown to them, forcing them to be uprooted and left in a situation of uncertainty, loneliness, and vulnerability.

Accordingly, this piece sets out to ask a simple yet crucial research question: Does transnational law present an opportunity to recast Argentinian migration law by generating a "settlement criteria" which would prevent the expulsion of migrants whose entire lives are rooted in the country? The hypothesis behind this work is that the absence of an explicit mention of such a right shall not be understood as the absence of the right per se. Subsequently, what is explored throughout the following pages, is the blurry boundary that lies between a migrant in law and a citizen in reality. By zooming in on this nexus, it is argued that there are legal and humanitarian reasons to claim the existence of the settlement of migrants could be a reason to impede their expulsion. At the same time, considering the multiple internal and external sources from which law can be derived, it results optimal to embrace a transnational legal perspective on the topic to have a comprehensive and appropriate discussion. This would mean to "include all law which regulates actions or events that transcend national frontiers. Both public and private international law are included, as are other rules which do not wholly fit into such standard categories" (Jessup, 1956:2).

Furthermore, two comments on the validity and relevance of this research need to be made. First, it has to be highlighted that the external validity of this research might not be seen as particularly wide, given that the argument is largely derived from the Argentine normative framework and its jurisprudence. Thus, conclusions drawn are not easily extended to other national cases. Nonetheless, and as it is shown in the second section of this work, a non-minor part of the argument is based on several different instruments that originate within the transnational legal framework that is relevant for many different national cases, especially for the Latin American region. Therefore, even though this work aims to enlighten the possibility of claiming a settlement right for migrants based in Argentina, part of the arguments could be extended beyond the frontiers of the case under study. Second, the research topic of this piece is of immense social and academic relevance: on the one hand, it highlights the human-agency factor behind the migrant and the acknowledgement of the social, economic, and family implications that an unlawful expulsion could result. On the other hand, because by relying on a simplistic yet novel methodology, advances and broadens the discussion of migrants' rights and the migration legal framework.

For that endeavor, the first section is dedicated to mapping the Argentinian legal framework surrounding migration, focusing primarily on norms and jurisprudence both from the national and the international arena. Throughout the second section, other sources of law are scrutinized to analyze if there are reasons to argue that the settlement of a person can impede his expulsion. Lastly, some conclusions are derived from the contrast between the transnational legal sources used and the Argentine migration tradition.

SECTION 1: MAPPING THE LEGAL FRAMEWORK

The migration legal landscape in Argentina is a robust one, full of legal instruments derived from national as well as international jurisdictions. Primarily, it is composed of the Argentine Constitution (1994), the National Migration Law No.25.871 (2004), the International Convention on the Protection of the Rights of All Migrant Workers Members of Their Families (2003) and the MERCOSUR, Chile and Bolivia Resident Agreement (2018). Throughout the following paragraphs, each of the above-mentioned instruments is explained and analyzed in light of the discussion being held here.

Starting with the Argentine Constitution (1994), this document addresses fundamental duties and liberties in a wide sense, but it also tackles specific issues that are linked to the migration framework. As mentioned before, the very preamble of the Constitution states that Argentina is a free and welcoming place for anyone who wants to live there. Besides that, it also establishes that any foreigner living in Argentina holds the same civic rights as any citizen (art.20) while it claims that the Argentine state will proactively encourage immigration (specifically from Europe) to enrich the country with their knowledge and skills (art. 25). These articles matter as they show the openness of the country towards immigration, a trend toward equality, and a comprehensive approach to this phenomenon. Moreover, it also serves, due to its legal hierarchy, as principles through which the rest of the migration legal scaffolding should be carried out and interpreted (Ministerio del Interior de la Republica Argentina, 2019).

Along the Constitutional lines, it is important to recall Fos Medina's work (2015). In his research, he looks at the Constitution to build a legal theory surrounding the settlement as a right. According to him, the settlement is composed of three basic core elements: cultural, territorial, and social...