Chile’s new migration law: advances and challenges

Tuesday 18 October 2022

María Fernanda Espinosa
Barros y Errázuriz Abogados, Santiago

Francisca Rojas
Barros y Errázuriz Abogados, Santiago

Since the end of the 1990s, international migratory flows have increased significantly. Over the last ten years Chile has experienced several waves of migration from neighbouring and distant countries, as is the case of Colombia, Haiti, Peru and Venezuela, among others.

According to information from the United Nations Economic Commission for Latin America and the Caribbean, between 2010 and 2018 there was an exponential increase in immigration to Chile, mainly produced by the crises in Haiti and Venezuela. The National Institute of Statistics of Chile reports that in 2017 the migrant population was around 750,000 but in December 2018 it increased by approximately 500,000 foreign citizens. As of 31 December 2020, the National Institute of Statistics of Chile, estimated that there were a total of 1,462,103 foreigners in Chile. The distribution of foreigners mainly comprised citizens from: Bolivia (8.5 per cent), Colombia (11.4 per cent), Haiti (12.5 per cent), Peru (16.3 per cent) and Venezuela (30.7 per cent).

It is in this context that immigration legislation must face and adjust to the different realities in each country. In the case of Chile, regulations dating back to 1975 (Decree Law No 1,094) were in force until the beginning of 2022. In effect, the processing of a bill which sought to modify the migration regulations in Chile began as far back as 2013. In 2018, the government reactivated and promoted the processing of the bill with some modifications. One of the main objectives was intended to standardise the entrance of foreign residents to Chile as well as reduce the number of clandestine entries through unauthorised channels.

As a result of the above, in April 2021, Law No 21,325 on Migration and Foreigners was published, aiming to restructure and diametrically change migratory regulation in Chile. This Law established a deferred entry into force, subject to the publication of the Immigration and Foreigners Regulation. This publication occurred on 12 February 2022, at which point the new immigration regulations came into full effect.

The main changes of this new regulation are reflected mainly by the elimination of the ‘labour tourism’ in which foreign citizens could enter as tourists and then change their migratory status to residents. That is to say, under the new Law all foreigners – except as otherwise provided by law – who need to reside in Chile must make their visa application from abroad prior to entering Chile. For the same reason, the possibility of changing from tourist to resident status is eliminated. New categories and denominations of residence permits have also been created, as well as a new migratory institutional framework with the creation of the National Migration Service. The Law also grants new faculties to proceed with deportation processes for citizens who have entered the country illegally.

As mentioned, this new Law has focused on attempting to solve problems relating to the increase in illegal immigrants. However, it made no attempt in trying to address the new demands and structures of international mobility which are becoming increasingly relevant and pressing.

In this regard, starting from the Covid-19 pandemic and the advances of technologies and the probably permanent irruption of remote working, the challenges of international mobility have also changed. It is possible to anticipate that the new forms of transnational work, for example, the provision of services from a country other than the one where the company is located or international secondments, will require more modern and flexible solutions, as that would help meet the requirements of a rapidly changing and developing world.