SCOPE OF THE NEW LEGISLATION ON MIGRATION; GUATEMALA

After repeatedly failing to reform, amend or repeal the Migration Law, on September 20, 2016 the Congress of the Republic finally adopted the Migration Code, which partially repeals the Migration Law (dating back to 1998), of which only Section X, Crimes and Misdemeanors, amended in 2015, remains in force.

The new regulations on migration contemplate several aspects such as strengthening the country’s migratory security, full recognition of the right to migrate and respect of the rights of migrants. It includes institutional restructuring and promotes a more orderly regularization of migrants that considers aspects of international migratory law.

  1. Protection of Migrants

The new Code fully recognizes the right to migrate and harmoniously incorporates the State’s responsibility to guarantee the personal integrity, life and liberty of every foreign person in the country, establishing appropriate care, assistance, security and protection for migrants in the categories of asylum seekers and refugees as well as migrant workers, their families and other migrants who enter the country for lawful purposes.

It also includes a definition of Guatemalan migratory law, which regulates a person’s freedom to enter, remain, transit and leave the national territory respecting the fundamental rights of persons recognized by the Constitution of the Republic, domestic legislation and international instruments.

With regard to migrants’ right to work, the Code recognizes that the State of Guatemala must guarantee the rights enshrined in the Constitution of the

Republic of Guatemala, domestic legislation and international instruments recognized in the country for all migrants and their families

It defines a migrant worker as “any foreign person who performs paid activities in the national territory” and recognizes different categories of migrant workers:

  1. a) Trans-border and itinerant workers
  2. b) Seasonal workers
  3. c) Consultants, advisors or specialized technical workers
  4. d) Self-employed workers
  5. Institutional Restructuring

It eliminates the relationship between the Bureau of Migration of the Ministry of the Interior (which is now the top authority on migration) and creates the Guatemalan Migratory System. It is made up of the National Migratory Authority, the Guatemalan Migration Institute and the National Migrant Assistance Council. The purpose of this migration system is to ensure the protection of migrants, appropriately and effectively regulate the entry and departure of Guatemalans and aliens and act under the principles of officiousness, timeliness, independence, impartiality and transparency. It also gives the Institute the authority to sanction within the exclusive area of its competence, including the imposition of administrative measures and monetary fines and ordering migrants to leave the country.

III. Entry into Force

The new migration regulations (Decree 44-2016), which have not been enacted yet because an appeal was filed before the Constitutional Court, which ordered a provisional amparo1 that essentially establishes the following:

  1. a) During the six months after its entry into force, the Care and Protection Council shall meet as often as necessary to establish an agenda and within a year develop a definition of the procedures to

be followed in the cases included among the responsibilities assigned to it by the Code.

  1. b) The National Migration Authority shall be created 60 days after the entry into force of the Code and start drafting Regulations and the transition plan, which shall be ready within a period of six to twelve months.
  2. c) All the applications, procedures and formalities that existed prior to the entry into force of the Code shall be dealt with under the old Migration Law.

“The new legislation on migration is significant step forward in the system for the protection and security of the different categories migrants and a renovation of the current migration system” that has been characterized by its inability to adapt to the needs of modern life and to legislative harmonization at the Central American level, since it used to be the least up-to-date migration law in the region.

Its implementation will represent a significant change with respect to the current legislation and the existing actions of the Bureau of Migration, which is literally unable to respond to the needs, conditions and basic controls required by migration.

The new decentralized administration model will not only recognize and ensure the right to migrate and migrants’ human rights, but will also be in accordance with the administrative conditions and international standards on migration, giving legal certainty to processes that have to do with migrants’ stay and legal status in the country.

It is therefore extremely important to ensure that the Regulations governing the law, which are still being developed, are in line with the regular legal framework and make it possible to implement the principles, bases and policies of the national migration system enshrined in the new Code in order to ensure proper coordination with State agencies, international organizations and, especially, civil society.

 

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