Concerned About Expulsions of Individuals in Human Mobility Contexts in Chile, IACHR Asks State to Respect Principle of Non-Refoulement

November 29, 2021

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Washington, D.C. – The Inter-American Commission on Human Rights (IACHR) is concerned about expulsions of individuals in human mobility contexts in Chile, including some who may require international protection. The Commission urges the State to respect the principle of non-refoulement in compliance with inter-American standards, and to ensure due process and access to effective protection mechanisms in procedures to expel or deport individuals in human mobility contexts.

Through its various monitoring mechanisms, the IACHR is following the situation of these individuals in Chile, especially with regard to the implementation of expulsion procedures that allegedly fail to take into consideration potential needs for international protection or family reunification, or the best interests of children and adolescents. The IACHR notes with concern that, on November 4, 2021, the Chilean government expelled, on purely administrative grounds, at least 120 individuals from Colombia and Venezuela, including—according to public reports—some who had been convicted of crimes in Chile and some who had entered the country through irregular routes. The IACHR notes that these expulsions allegedly join others that have been reported this year, including further administrative expulsions.

Civil society organizations have reported that the affected individuals were arrested and held incommunicado before these administrative expulsion procedures were conducted. These proceedings led to family separations and to insufficient efforts to ensure family unity and family reunification. Civil society organizations have noted that the affected individuals are not getting the legal assistance they need or the opportunity to effectively appeal expulsion warrants. These organizations have also reported cases where expulsion warrants were suspended when the affected individuals had already been deported.

The State told the IACHR that most of the expulsion warrants concerning individuals in the flight that left Chile on November 4, 2021, had been issued by Chilean courts of justice, and that they had enforced due process. Chile also said that it conducts no collective expulsions, and noted that expulsions that are implemented in groups cannot be considered collective expulsions because each one of the affected individuals has been subjected to individual proceedings that have led to their expulsion, based on adequate procedures and consideration. Concerning administrative expulsions, the State said that some of the affected individuals had filed writs of amparo that invalidated the relevant expulsion warrants.

The Commission notes that different specialist agencies of the United Nations have said that conducting expulsion proceedings during weekends restricts access to justice for the affected individuals. These agencies have stressed that all individuals subjected to expulsion measures have the right to an individual assessment of their cases, among others to establish any needs for international protection and any risks for their lives, liberty, or integrity. These agencies have also said that expulsion proceedings involving individuals with both administrative and judicial expulsion warrants require differentiated management protocols. According to these agencies, combining both profiles can lead to an increase in manifestations of xenophobia and discrimination in host communities, by associating the people expelled on administrative grounds with crime.

Similarly, the Committee on the Protection of the Rights of All Migrant Workers and Members of their Families (CMW) expressed in its concluding observations on the second periodic report of Chile of May 11, 2021 its concern about the following aspects: (1) what it regards as a high number of collective expulsions; (2) the material impossibility of filing appeals to prevent expulsion; (3) how the timing of these expulsions allegedly violates due process and the requirements of adequate consular protection; and (4) the use of tools like self-denunciation to enable administrative expulsions without adequately informing the affected migrants and asylum seekers. The CMW said that all resolutions ordering deportations had the same wording and changed only the name of the individual in question, the date, and the point of entry, which allegedly proved the failure to conduct individualized assessments. The Special Rapporteur on the Human Rights of Migrants, the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and the Working Group on Arbitrary Detention have urged the State to immediately end collective expulsion proceedings against migrants. The IACHR is concerned about the risk of violations of due process and about potential hurdles for access to protection mechanisms, and consequently about the potential impact on the principle of non-refoulement that stems from this expansion of the practice known as administrative expulsion.

The IACHR stresses that, in keeping with Resolution 4/19, Inter-American Principles on the Human Rights of All Migrants, Refugees, Stateless Persons, and Victims of Human Trafficking, the State must respect the principle of non-refoulement (which includes a ban on rejections at the border) for all individuals seeking asylum or any other form of international protection. The Commission further stresses that no one can be expelled, returned, extradited, informally transferred, or sent in any other way to another country—whether or not they are citizens of that country—where their life or liberty might be at risk or where they might be subjected to torture or to cruel, inhuman, or degrading treatment or punishment.

In Advisory Opinion 21/14, the Inter-American Court of Human Rights said that the principle of non-refoulement, held in Article 22.8 of the American Convention, protects all foreign persons, not only those seeking asylum or refugee status. Based on the prohibition against torture, this is an absolute principle that amounts to an imperative standard of international customary law (ius cogens). Further, Advisory Opinion 25/18 stresses that this principle also safeguards various inalienable human rights, because it seeks to preserve a person's life, liberty, or integrity.

Concerning expulsion and deportation proceedings, the Commission stresses that these must be the result of individualized decisions that reflect international protection needs, and that collective expulsion and deportation manifestly violate international law and due process, since they deprive migrants of the rights to be heard, to have an appropriate defense, and to appeal decisions to expel or deport them. The IACHR stresses the duty to suspend decisions to expel or deport an individual while an appeal remains pending. In Resolution 2/18Forced Migration of Venezuelans, the Commission stressed the need to respect the principle of non-refoulement and the right not to be returned to Venezuelan territory—whether through deportation or expulsion proceedings or through any other actions by various authorities—of Venezuelans who risk persecution and other serious violations of their human rights.

In line with its report , the IACHR recommended among others that States guarantee effective access to their territory and to protection procedures and take measures to adapt existing structures and institutions, as well as to ensure these structures and institutions have the capacity to adequately process and assess (ensuring due process) the situation of the individuals involved in mass flows of people seeking asylum, refugee status, and other forms of humanitarian protection in the context of the current mixed migrant movements in the Americas.

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. 318/21

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