The need for pro bono work to assist cross-border human mobility: the Venezuelan-Colombian case

Lina María Moya Ortíz

Gómez-Pinzón, Bogotá

lmmoya@gomezpinzon.com

In countries with permanent migratory flows, pro bono work has frequently assisted migrants, asylum seekers and refugees. For example, in the United States, due to the high cross-border human mobility, especially along the Mexican border, assisting migrants has been a common pattern in pro bono projects. Many of these projects have contributed to access to justice and rights for this population. However, other countries have much less experience in these matters and suddenly face extreme changes in their migratory dynamics. Therefore, countries such as Colombia, which once had significant levels of outward-migration, now confront mass immigration.

In 2015, Venezuela’s population stood at 30 million, according to World Bank figures.[1] By January 2022, according to the Inter-Agency Coordination Platform for Refugees and Migrants from Venezuela, out of the 6.04 million people who have fled Venezuela,[2] approximately two million have entered Colombia (without taking into consideration those who are just transiting the country via another destination). This massive change creates a new chapter in Colombian migration history, as the country used to be an emigrant country. Colombians used to flee their own country in the search of better opportunities due to political violence, recurring economic crisis, excess labour and poor infrastructure.[3]

Immigration is not new in Colombia and not all the recent migration is exclusively from Venezuela, as people from Cuba, Haiti, Africa and South Asia, among other regions, also arrive in Colombia, often in vulnerable conditions too. Nevertheless, the Venezuelan situation and its massive migration puts in question the institutional capacity of the Colombian state entities as well as non-governmental organisations (NGOs) and private sector entities that work for the common and social interest, including those interested in breaking the barriers to access justice.

Why is pro bono work so important in this new context? I can find three main, but not exclusive, reasons:

1. Migrants, asylum seekers and refugees usually need free legal services to accomplish multiple, but sometimes simple, legal procedures in order to gain access to their rights. Current legislation does not match current circumstances and the transition to new legislation is not fast enough for a changing situation.
2. Pro bono lawyers, firms with pro bono practices, and legal aid clinics are those who normally participate in cases that are under review in the high courts and that accomplish unprecedented rulings which extend the scope of rights protection for this population.
3. Beyond our situation as lawyers, in a context of high and unjustified xenophobia, finding a lawyer or just a person who is willing to work towards the inclusion of this population, is a tool not only to break down the barriers to access justice but that directs our action towards social inclusion, as this is not a temporary state of affairs.

Regarding the first point, understanding the context of the Venezuelan position is fundamental. According to the 2021 National Survey of Living Conditions (ENCOVI) carried out by the Andrés Bello Catholic University in Venezuela, nearly 95 per cent of Venezuelans are in poverty and 76.6 per cent are living in extreme poverty.[4] This means that when migrants, asylum seekers or refugees from Venezuela arrive in Colombia, they do not have sufficient economic resources to afford a lawyer but do they require legal assistance.

This assistance is needed because current regulations do not match the actual migratory context and because migrants, refugees and asylum seekers are unfamiliar with the Colombian (or their destination country) legislation, so the means to access rights is unclear. Having a pro bono lawyer can help. Normally, this population needs to institute individual constitutional actions for rights protection (Acción de Tutela), and even though this public action does not require a lawyer, being unfamiliar with the legal framework makes it difficult to navigate it correctly or to acquire a favourable ruling.

Although many regulatory changes have taken place in recent years, this transition to a new normativity has not only been slow but sometimes ignores the legal and non-legal boundaries most migrants face. For example, the Comprehensive Immigration Policy (Act 2136/2021) was issued in 2021,[5] yet as of today, many of the aspects have not been regulated. Consequently, simple questions on which standard to use and how to access rights on this new normality are unclear.

Second, pro bono work or free legal services are usually provided by clearing houses, law firms with pro bono programmes, or legal aid clinics, which also normally support strategic litigation to promote rulings by high courts and consequently, wider access to rights and justices for migrants, refugees and asylum seekers. A clear example is the Legal Clinic for Migrants at University of the Andes in Bogotá, Colombia which has participated in over ten rulings from Colombia’s Constitutional Court regarding migrants, refugees, and asylum seekers’ rights.[6] Without these institutions which undertake pro bono work and therefore promote access to rights and justice for vulnerable people, the scope of rights for this population could be even more limited than it currently remains.

Finally, pro bono work is not only a tool to break down barriers to access justice but also a way of tackling xenophobia and promoting social inclusion of the migrant, asylum seeker and refugee population. According to the Xenophobia Barometer, xenophobia is on an upward trend in Colombia,[7] especially since Venezuelan migrants, asylum seekers and refugees have been wrongly related to crime and insecurity, creating an attitude of rejection towards them, making their social inclusion all the more difficult.[8]

As the Inter-American Commission on Human Rights declared in Doc 34 –OEA/SER.L/V/II:[9]

‘It is “essential to any social inclusiveness process” to ensure “full independence of the branches of government, particularly the guarantee of an impartial judiciary, access to justice, the enforceability of rights recognised under the Constitution and international law, strict compliance with due process without discrimination, policies for coordination between the community and formal justice systems, and, most especially, fighting the severe problem of impunity for those responsible for human rights violations” ’ [emphasis added].

By simply assisting migrants, asylum seekers and refugees with pro bono work, lawyers can contribute to social inclusion and make the process less traumatic for this vulnerable population.

This final point is an invitation to understand our roll as pro bono lawyers and how a simple action of taking a pro bono case to assist a migrant, asylum seeker or refugee, is the opportunity to promote social inclusion and change a life by removing barriers to access to justice. In this current context of massive migration fluxes and thousands of people needing free legal assistance, lawyers willing to undertake pro bono work are not only needed, but truly fundamental to assisting this population.