Venezuelan displacement has not only been characterised as a "humanitarian crisis" due to both the conditions that prompt that mobility and the vulnerability of the people on the move, but also perceived as a "migration crisis" that has imposed socio-economic challenges in reception countries, and as a political issue to deal by the countries of the region (Gandini et al., 2019). By December 2022, South American countries were destination to almost 80% of the total number of Venezuelans living outside their county (R4V, 2022). Colombia has the largest Venezuelan population with 2.48 million, followed by Peru with 1.49 million, Ecuador with more than 502,000 Venezuelans, and Chile with more than 444,000. Brazil is the fifth destination country with 388,000 Venezuelans, followed by Argentina, hosting 171,000 Venezuelan migrants (R4V, 2022). The platform of interagency Coordination for Venezuelan Migrants and Refugees (R4V)1 specifies that many governments of the region do not account for Venezuelans without a regular status, which means that the total number of Venezuelans is likely to be higher.

This mobility has not only increased the number of foreign populations in key destination countries such as Argentina, Brazil, and Chile (IOM, 2021), it has also transformed some countries from being transit and sending countries, to destinations of Venezuelan displacement, such as Peru (Palla et al., 2022) and Colombia (López, 2022). Despite the political salience of this displacement and the sheer numbers of people on the move, this is not the only mobility dynamic taking place in the Latin American's sub-region. South America is also experiencing the arrival from people from Central America (Cantor, 2014), and the ongoing mobility of Haitians (Marcelin & Cela, this volume; Yates, 2021) and Cubans (Zapata et al., 2023), among other intra-regional and extra-regional flows. These flows are driven by structural inequalities and labour opportunities, among other complex reasons.

These diverse patterns of mobility, alongside internal economic, social and political changes, as well as international challenges, have shaped the regional and national migration governance that characterised South America during the last two decades (Acosta et al., 2019; Gandini et al., 2019; Jubilut et al., 2021). Since the early 2000s there has been a growing body of literature that discusses the development of a regional framework of human mobility in South America, characterised to be as one of the most developed after the EU mobility regime (Brumat, 2020; Geddes et al., 2019), and shaped by a liberal discourse in terms of migrants' rights (Cantor et al., 2015; Geddes & Vera Espinoza, 2018). However, this same literature recognises that beyond the rhetoric, the liberal approach has not uniformly been reflected in national-level migration laws (Finn et al., 2019) while showing several gaps in implementation (Acosta & Freier, 2015), illustrating the tensions between human rights and security concerns (Domenech, 2013). The same can be said about the regional approach to refugee protection, which has been characterised as "progressive" and promoted under a principle of "solidarity" but criticised by lack of implementation and with gaps in the protection provisions (de Menezes, 2016; Feddersen et al., 2023; Vera Espinoza, 2018; Vera Espinoza, 2021).

The discursive consensus in the regional approach to human mobility and refugee protection, based on the non-criminalisation of irregular migration, human rights rhetoric and multilateral efforts to coordinate policies (Margheritis & Pedroza, 2022), has been discussed as a somehow distinctive regional approach to migration governance in South America (Geddes & Vera Espinoza, 2018; Geddes et al., 2019). However, the regional approach has been put to the test by the Venezuelan displacement and the convergence of multiple crises—including the COVID-19 pandemic, socio-economic crisis and local political unrests, among others (see Gandini et al., 2022; Margheritis, 2022). The regional response to migration and displacement in the last five years has been more fragmented (Brumat, 2022; Margheritis & Pedroza, 2022), with the countries of the region adopting a series of ad hoc measures mostly aimed at temporary protection (Acosta et al., 2019; Gandini et al., 2019) and with a mixed use of already existing mechanisms such as the MERCOSUR residence agreement (Brumat, 2021) 2 or the limited use of the expanded refugee definition provided by the Cartagena Declaration of 1984 (Blouin et al., 2020).3

Within this fragmented scenario, I argue that South America shows processes and practices of both change and continuity in its regional approach to migration governance which respond to a mobility framed and driven by multiple "crises" (Gandini et al., 2022; Margheritis, 2022; Vera Espinoza et al., 2021). Some of the changes, however, have reinforced the most restrictive aspects of the "continuities" we see across the region.

Drawing on the review of recent literature, as well as from insights from two research projects conducted between 2017 and 2022,4 this chapter explores how migration governance in the region has changed, and with what consequences, considering recent migration dynamics, particularly the Venezuelan displacement, and the convergence of multiple "crises". The chapter argues that in a context of multiple "crises", South American migration governance is characterised by a fragmented and reactive approach which shows some continuities (such as the permanence of a regional progressive framework and the continued presence of a securitised approach) and change (which includes the increased militarisation of border controls and the weakening of the asylum regime, among others). Taken together, the chapter shows that South America's patchwork migration governance evidences the fragmentation of regional responses, which in practice translate in more control, the criminalisation of migration, increased irregularity and less protection for people on the move.

The chapter develops this argument by first exploring key ideas associated to regional migration governance and notions of crisis. The text then provides evidence on the continuities we can see across many countries of the region as well as the governance changes that have emerged in the context of multiple "crises". The chapter then discusses how can we make sense of these continuities and changes in context of fragmented and reactive regional migration governance.

## **Regional Migration Governance in Times of "Crisis"**

There is a growing body of literature exploring regional migration governance in South America. A large part of this scholarship has tried to understand the extent to which a "liberal tide" took shape in the region, focusing on the contradictions of developing a progressive regional discourse during the postdictatorship period and early 2000s, which coexisted with restrictive policies (Ceriani, 2018; Acosta & Freier, 2015; Cantor et al., 2015). Other contributions have also shed light on the potential impact of regional consultations processes (Finn et al., 2019; Ramírez & Alfaro, 2010) as well as the development and influences on mobility mechanisms such as the MERCOSUR residence agreement (Brumat, 2022). There is also scholarship that explores the growing (and continuing) securitisation trends on migration governance (Brumat & Vera Espinoza, 2023; Brumat et al., 2018; Herrera & Berg, 2019), particularly those that started to take shape during the COVID-19 pandemic (Domenech, 2020; Freier & Vera Espinoza, 2021; Vera Espinoza et al., 2021; Zapata et al., 2023). While the region continues to be underrepresented within global academic debates, these contributions—through publications in English, Spanish and Portuguese—have developed relevant knowledge about the specific characteristics of regional migration governance in South America, its role within wider Latin American and global trends, and how it seats within South-South migration debates.

Migration governance has been widely understood as the "norms, rules, principles and decision-making procedures that regulate the behaviour of States (and other transnational actors)" (Betts, 2011, 4). These are based on a range of formal and informal institutions and processes that operate at different levels. Besides this multi-level understanding (see also Lavenex & Piper, 2019), migration governance has also been understood as epiphenomenal, related to "a much wider set of economic, political, social, demographic and environmental conditions" (Geddes et al., 2019, 8) that determine "change", which governing organisations try to make sense of in order to navigate and coordinate its effects. Governance systems are not just passive or reactive (Geddes et al., 2019, 9), they can also shape mobility. A focus on the sense making process of migration governance has also been developed in Latin America. In the early 2000s, Mármora (2002, 390) described migration governance as "the adjustment between the characteristics, causes and effects of migration, the expectations and social demands about it, and the real possibilities of the States to respond to it".

This "adjustment" between causes, expectations and the possibilities of responding to it, have been mostly articulated around notions of "crisis" and the extent to which states are able to manage the "misgovernance" of migration. Latin American scholars have been critical to the development of notions of governance, by shedding light into the discourses and practices that have been both constructed and facilitated through it, the actors that have imposed these ideas and the impacts they may have in "managing" mobility (see Domenech, 2018; Ramírez & Alfaro, 2010). Domenech (2018) pays particular attention to how discourses of "crisis" are formed around issues such as the increase of irregular migration and the business of trafficking and smuggling, enabling a justification that demands bilateral and multilateral action, therefore promoting specific ideas around regional governance.

The formation of governance discourses is not exclusive to South America and the regional level. For instance, we have seen how the notion of "safe, orderly and regular" migration has been spread globally, first through the adoption of the Sustainable Development Goals (Target 10.7, 2015) and then through the Global Compact on Migration (2018). In the case of South America, Domenech (2018) also puts attention to the actors—such as the International Organization for Migration (IOM).—that through their work with governments contribute to disseminate these ideas. We also see this transfer and development of knowledge in relation to refugee protection, such as the use of the principle of "solidarity" (de Menezes, 2016; Vera Espinoza, 2018) and the search for what it used to be "durable solutions" which has now transitioned to just "solutions" (Vera Espinoza, forthcoming). In a recent text, I explore how the grammar of durable solutions in Latin America has changed over the last 20 years, both in line with the events in the region as well as with changes at the international level, and the changing role of the UNHCR in the governance of forced migration (Vera Espinoza, forthcoming).

The point to emphasise here is that processes of migration governance at the national, regional or international level—are not merely responses to mobility or situations of "crisis", rather the context itself is discursively constructed around issues that justify governance. For instance, we have recently seen how a process of a categorisation has also mobilised specific actions by States. For example, UNHCR created the category "Venezuelans displaced abroad", which was first introduced in its 2019 Global Trends Report. While the report acknowledges that the group is entitled to international protection, it does not necessarily recognise them as refugees (Freier, 2022). This ambiguity in the category has been instrumental for many South American States that have decided not to use the expanded refugee definition of the Cartagena Declaration, even when is included in their legislations (as is the case of Chile and Uruguay) (see Zapata et al., 2023). So far, only Brazil in the South American context (and Mexico when looking at the wider Latin American region), have recently applied the Cartagena refugee definition to specific national groups, including Venezuelans (Blouin et al., 2020).

The creation of these understandings of governance can also be explored through Geddes (2021) notion of repertoires of migration governance, through which the author invites us to focus not only on the outcomes of governance, such as law and policies, but also on "what actors do and what they think they should be doing". These repertoires comprise narratives, that are social, affective, performative and ongoing. Through the operation and effects of these repertoires they "have powerful effects on migrants and their lived experiences" (Geddes, 2021, 3).

In line with the processes and impacts of governance, it is relevant to briefly unpack the notions of "crisis" that have been developed in South America and how they have informed the development of regional migration governance. Gandini et al. (2022, 17) explain that in the Latin American context, the migration-crisis nexus has been understood both in a preventive and reactive manner, but also as a "strategic decisions in light of an exceptional situation". We identified then that there are two coexisting frameworks: one that shows migration as result of a specific context due to social, political, economic and environmental issues (as in the context that prompted the Venezuelan displacement); and a second that shows crisis as a context, in which the migration processes are those that create contexts of "crisis". The latter process relates to the framing use for example in the so called "European Refugee

Crisis", terminology that emerged in 2015 as a result of the Syrian displacement, particularly in relation to the arrivals at the shores of Europe, and the associated categories related to the "crisis" (see Crawley & Skleparis, 2018). We have seen similar framing in relation to increased mobility patterns in South America. Crisis, then, it is more linked to a political categorisation rather than an empirical one (Rojas & Winton, 2019).

Migration as result of a context of crisis and migration as crisis can also coexist at the same time. Margheritis (2022, 4) suggests that in the South American context we can qualify the Venezuelan displacement as a "nested" crisis, defined as "one occurring within, and closely intertwined with, other crises—as in a Russian doll set. The key point is that such crisis is embedded in a larger context characterized by diverse, interrelated critical conditions/ junctures".

The notion of "crisis"—either as context "for" or "of ", multiple or nested, crisis—has become, in South America and elsewhere, a framework to justify the implementation of both humanitarian discourses and restrictive State practices (Herrera & Berg, 2019). As we have explained elsewhere (Vera Espinoza et al., 2021) ideas of crisis and exceptionality tend to identify migrants as "humanitarian subjects" and not as subjects of rights, which justify emergency responses that tend to be short term and ad hoc, as we see in the context of South America response to the Venezuelan displacement (see also Gandini et al., 2022). We have also seen an increased criminalisation of migrants and their mobility, and the spectacularisation of control as the main response (Varela-Huerta, 2021). The framing of crisis then becomes a bordering process in itself, shaping governance practices and measures of control—both outside and inside the States' territories (Vera Espinoza, 2022).

The next sections explore patterns of continuity and change in regional migration governance in South America, and how and in which ways these simultaneous processes that control who move, for how long and under what conditions, also shapes how people move. With a focus on processes, actors and outcomes, the sections that come reflect on how notions of "crisis" have shaped the logics and practice of governance in the region.

#### **Continuity: The Coexistence of a Progressive Framework and Security Actors**

It has been widely established that South America's migration governance is non-linear, with waves of restrictive and more open migration policies happening one after the other, or—in many cases—simultaneously (Domenech, 2007; Geddes & Vera Espinoza, 2018). Until the end of the twentieth century, migration policy in South American countries was marked by a vision of national security and a selective approach that created *wanted*  and *unwanted* migrants (Acosta, 2018; Herrera & Cabezas, 2019). From the late 1990s and throughout the early 2000s, most South American countries who inherited restrictive immigration legislations from the dictatorships in the 1970s and 1980s, adopted progressive national policies and discourses that emphasised the importance of migrants' human rights and the need to de-criminalise migration (Brumat, 2020). Freier and Rodriguez (2021) state that since 1993, sixteen Latin American countries have reformed their immigration laws. At least nine of them are South American countries.5

During this period, we also see a progressive regional framework taking place, which is consistent with the prominence of migration as part of the social agenda in regional integration processes (Margheritis, 2012). For instance, multilateral organisations such as the Southern Common Market (Mercosur) and the Andean Community (CAN) created mechanisms that facilitated a mobility and residence regime for intra-regional migrants (Brumat & Vera Espinoza, 2023). These initiatives were also discursively aided by the non-binding declarations of the South American Conference on Migration (SACM) (Finn et al., 2019). Some of the regional discourses and mechanisms developed through these multilateral organisations remain in place, showing signs of regional continuity. However, the implementation of these measures and the emergence of new regional initiatives show a more complex panorama.6

A similar progressive, although complex, regime is in place for international protection of forced migrants in the region. This is characterised by the coexistence of systems across international (the 1951 Convention Relating to the Status of Refugees, its 1967 protocol and the 2018 Global Compact on Refugees), regional (the 1984 Cartagena Declaration on Refugees and the regime derived from its review process; The Inter-American Human Rights System) and national levels (national legislation and complementary protection measures) (Jubilut et al., 2021). Most countries in the region have signed the Cartagena Declaration (1984) and thirteen countries have included the Cartagena refugee expanded definition in their domestic legislation.7 Although, in South America, only Brazil has used this definition on specific nationalities, such as Venezuelans.

This regional migration norms for protection and residence that emerged from the political discourses in the late 1990s and early 2000s, have been associated to a resurgence of regionalism (Cantor et al., 2015; Geddes et al., 2019), the low number of immigration at that time (Acosta et al., 2019), the social agenda of left-wing governments in power then (Margheritis, 2012) and even to the shared experiences of exile and migration that many actors within governance systems had (Geddes & Vera Espinoza, 2018). According to Brumat and Freier (2021), this progressive turn in migration policies was also "consciously designed" in opposition to the restrictive policies and approaches that were being developed in the USA and Europe.

While this progressive regional framework remains, there are several issues on how countries use or not use these instruments and mechanisms, particularly in times of "crisis". Still, its continuity cannot be understated either. Some of the processes, structures and actors set up as a direct or indirect result of this regional approach, have been relevant to uphold processes or create minimal standards despite political and shifting migration discourses in the region. For instance, Brumat and Geddes (2023) have shown that despite the threats of the far-right government of Jair Bolsonaro in Brazil (2019–2022), the country granted refugee status recognition to thousands of Venezuelans. The authors show that the recognition of Venezuelans as refugees was grounded, among other reasons, in "a pocket of efficiency within the Brazilian state that was associated with the work of CONARE [the Brazilian National Committee for Refugees] served as a basis for the inclusion of CSOs and influence from international actors, particularly UNHCR" (13). The presence of these structures and the influence of the UN Agency would remain as legacies of the progressive reforms associated with the "liberal tide".

One of the key characteristics of this regional approach is the constant calls for migrant regularisation (Acosta & Harris, 2022; Castro, 2021). While in some cases the discourse has met the practice, as it shown by policies in Argentina, Brazil, Colombia and Uruguay towards Venezuelans, the fragmented approach discussed in the next section shows some contradictory policies. Moreover, this regional approach towards migrant regularisation, consistent with the human rights focus of the regional integration project of the 2000s, has been recognised as an approach of "control with human face" (Domenech, 2013), that is policies with a progressive rhetoric, but with mechanisms that may be conducive to control and securitisation (see Brumat & Vera Espinoza, 2023; Finn & Umpierrez de Reguero, 2020).

While the current regional approach is much more rooted in notions of "safe, orderly, and regular migration" and it is characterised by fragmented responses as I show below, there are still calls for regional governance. For instance, the Chilean president, Gabriel Boric, said in 2023 as part of the Community of Latin American and Caribbean States (CELAC) meeting: "One of the biggest challenges we have today is the migration crisis. We cannot respond to it individually, we have to address it together, regionally" (ADN, 2023).

Another continuity that we have seen in the region is the role of "securitist actors" within national migration bureaucracies. In a recent article, we discuss the re-emergence of these securitist actors within countries such as Argentina, Brazil and Chile, to explain migration policy change between 2015 and 2019 (Brumat & Vera Espinoza, 2023). These securitist actors, which mostly consist of bureaucrats within Ministries of Interior, Security and Defence as well as other groups with historical roots in influencing restrictive policymaking (Acosta, 2018), have promoted and/or endorsed national policy proposals aimed at detaining and deporting irregular immigrants, revoque the liberalisation of policy and encouraging migrant selectivity. These actors and their ideas also played a role in Chile's and Brazil's decisions to not sign and to leave, respectively, the 2018 Global Compact on Migration,8 despite their active participation in the negotiations that led to the non-binding agreement.

The coexistence of progressive regional frameworks and national securitist actors, and their continuity over time, allows to understand some of the tensions, but also the changes in migration governance in the region.

## **Changes: The Temporalities and Materialities of Control**

The confluence of specific crisis, such as the high numbers Venezuelan displaced across the region, then the health, social and economic crises associated with the COVID-19 pandemic, and high political and social polarisation, have provided a perfect mix to justify some of the changes we have observed on regional migration governance in South America. Here, I briefly explore three: the patchwork governance approach (Acosta et al., 2019; Margheritis & Pedroza, 2022); the militarisation of borders (Zapata et al., 2022) and the "weakening" of asylum (Zapata et al., 2023).

Around 2015 is when we start to witness increased political salience of migration in some countries of the region. At the time, the mobility of Haitians and Central Americans and the increased displacement of Venezuelans were starting to make the headlines. It is in 2017/18 when countries such as Chile, Colombia and Peru start to adopt some ad hoc legal instruments in relation to the Venezuelan displacement, while other countries such as Argentina, Brazil and Uruguay early opted to use existing norms such as the Mercosur Residence agreement to include Venezuelans, despite that the country was suspended from the bloc in 2016 (Acosta et al., 2019). Other countries such as Bolivia established a process of migrant regularisation since 2018.

Special attention should be given to the countries adopting ad hoc measures. I use the cases of Colombia and Chile to illustrate the differences among some of these approaches. Colombia, the main receptor country of Venezuelan population with more than 2.5 million people (UNHCR and IOM, 2022), opted to implement a special residence permit (PEP as per the Spanish acronym) in 2017. This permit gave Venezuelans right to residence and to work for a period of two years, a policy that was consistent with the regularisation approach that had characterised the region. However, in 2020 it was estimated that 56% of Venezuelans in Colombia were in an irregular situation as many of them did not accomplish the PEP requirements (Gobierno de Colombia, 2021). In March 2021, Colombia signed Decree No. 216 that created the Temporary Protection Statute for Migrants Venezuelans (ETPV as per the Spanish acronym). This temporary protection mechanism allowed Venezuelan migrants in Colombia at the time of January 31, 2021, to regularise their status and to stay in the country for ten years (Castro, 2021; López, 2022). While these 10 years regularisation time frame has been celebrated by the international community, the temporality imposed to residence raises questions about the lack of use of other already existing mechanisms for international protection (such as the expanded refugee definition of the Cartagena Declaration), which could lead to permanent residency. The implementation of the temporary protection mechanism also included the creation of a Single Registry of Migrants, which according to the Government of Colombia, has the objective of "collecting and updating your biographical and biometric information", which would be used for the formulation and design of policies as well as for identify the applicants for Temporary Protection Permit (Gobierno de Colombia, 2021, p. 8). There are concerns, however, about the use Colombia may give to this biometric information and who they will share it with. More recently, in 2023, Colombia signed an agreement with Panama and the United States to tackle migration through the jungle region that separates Colombia and Panama known as the Darien Gap, further externalising the control of mobility in the wider region.

Another case that is relevant to explore is the one of Chile. In 2018, the then right-wing Chilean government announced a wide migration reform that included a new migration law and the creation of different six visas and a regularisation process, as part of a series of measures to "clean up the house" (Freier & Vera Espinoza, 2021). Alongside the modifications to the bill, which was finally enacted in 2021 (Doña Reveco, 2022), the government of Sebastian Piñera issued two executive decrees to change visa procedures for Venezuelan and Haitian migrants. One of these decrees created the Visa of Democratic Responsibility for Venezuelans. This consular visa could be issued in any Chilean consulate abroad subject to specific requirements such as a passport (or ID national card) and proof of non-criminal record. With time, the requirements to access this visa increased and the visa started to work as a family reunification procedure (Vera Espinoza, 2022). The consular visa, that was promoted in the media as a special visa to help Venezuelans flee Maduro's regime, represents a de facto barrier to legal entry for targeted nationalities. We have seen the same barriers in other countries, such as Ecuador and Peru (Freier & Luzes, 2021; Palla et al., 2022). Before the imposition of the visa, Venezuelans could enter the country without requesting a visa. The government also reinforced the practice of mass deportations, as a key feature of a communication campaign that criminalises migration, reproducing ideas about "good" and "bad" migrants (Brumat & Vera Espinoza, 2023, Vera Espinoza, 2022). This rhetoric was particularly strong during the pandemic, when the government made media statements that associated the increase of COVID-19 cases with the arrival of irregular migrants, fulling the racism and xenophobia in Chile but also present across the region (Freier & Vera Espinoza, 2021). The campaign to criminalise migration has continued in the government of Gabriel Boric, and in early 2023 senators announced the proposal of a bill—with support across the political spectrum—calling to implement measures to allow police stop and search procedures and the preventive detention of undocumented migrants.

South American countries have used a "patchwork approach" to migration management, particularly in response to the Venezuelan displacement, with the adoption of a myriad of measures, instead of using the legal mechanisms already present in their legislations and regional frameworks. Many of these recent measures impose a particular temporality to rights of residency and pushes migrants, refugees and displaced population to navigate confusing and ever-changing laws and requirements (Vera Espinoza et al., 2021; Zapata et al., 2023). The fragmented approach to migration governance (Margheritis & Pedroza, 2022) that we see across the region is undoubtedly reactive to both external and internal dynamics and pressures (Brumat & Vera Espinoza, 2023). While some analysists consider this approach as "pragmatic" and to certain extent open (Gandini & Salee, 2023), is worth noticing that the fragmentation can become a governance tool in itself, as not only develops a confusing system aimed at deterrence, but also delegitimise the existing frameworks and norms.

These normative deterrence measures are also accompanied by other material and symbolic bordering practices, such as the militarisation of the borders that we have seen across the region. Some of these practices were taking place or being designed before the pandemic (as in the case of Uruguay), but in countries such as Brazil, Chile and Peru, among others, was the health crisis and the closure of borders in March 2020 that also led to border militarisation (Domenech, 2020; Palla et al., 2022; Zapata et al., 2023). The Chilean case is illustrative here to explain the knocking effect of these measures. The imposition of new consular visas in 2018 and the closure of borders in 2020 justified under the epidemiological measures to control the pandemic, contributed to a massive increase of migration through unauthorised entry points, with people enduring very dangerous journeys (Vera Espinoza, 2022). The response of the government came through the *Colchane Plan*, by which the militarisation of the border was consolidated. Decree 265 allowed the Armed Forced to contribute and assist the police with the migration control (Stefoni et al., 2021). As in Chile, many countries have allowed the militarisation of borders beyond the initial epidemiological reasons that justify them in the first place. As we have analysed elsewhere, the crisis of the pandemic allowed the normalisation of the exceptionality imposed during the pandemic (Gandini et al., 2022). The framework of "multiple crises" has then facilitated the emergence of new spaces of control and the articulation of actors that either respond or contribute to these exceptional measures.

Finally, but intrinsically linked to the discussion above, we have seen a growing discretionality on the targeting and the limited implementation of existing national laws and regional agreements on refugee protection across the region and the increase of complementary pathways rather than using existing frameworks (Jubilut et al., 2021). In a recent publication (Zapata et al., 2023), we analyse the cases of Brazil, Chile, Mexico and Uruguay to evidence that the emergence of Covid-related measures have further restricted access to refugee protection. In countries such as Brazil, Chile and Mexico the pandemic was used as an excuse to roll out a series of legal and administrative measures that curtail access to asylum, including rejection at the border, deportations and, in some cases, detention. These came to exacerbate other practices we have seen even before the pandemic, such as barriers to access asylum procedures and in some cases pre-admissibility interviews not contemplated in the law. From our analysis, Uruguay seems to be the exception, as the country implemented exceptional measures aimed at migrant and refugee regularisation (Zapata et al., 2023). However, these measures also include a specific temporality that is not conducive to long-term inclusion. Drawing from Mountz (2020) and de Lucas (2016), we argue in the paper that Latin America, and specially the Southern region, is witnessing "an accelerated weakening of refugee protection" which can result in the "*undermining, abandonment and/or replacement* of the region's widely praised refugee governance" [emphasis in original] (Zapata et al., 2023, 15). The ad hoc measures, the militarisation of borders and the weakening of asylum show how that grammar of refugee protection and the articulations of migration governance are changing in the region (Jubilut et al., 2021; Vera Espinoza, forthcoming).

## **Conclusion**

This chapter has explored the changes in migration governance in South America in the last decade, and how it has been framed and justified through the lens of crisis. The analysis shows evidence of both continuity and change within the management of migration. The chapter argues that South America has been developing a patchwork approach to migration governance, characterised by fragmented and reactive measures, with practices and measures that evidence both continuity and change. While this could be justified by the fact that the massive displacement of Venezuelans put to test the norms and structures already present in the countries of the region (measures taken under the pragmatic approach, as it has been called) it is also relevant to recognise how fragmentation itself becomes a tool of governance.

The patchwork governance approach, justified and enacted in a context of multiple crises, tends to normalise the limited use of existing frameworks and inject extra complexity to a system that is increasingly aimed at deterrence of migrant, refugee and displaced population in the region. Some of the regional structures and principles remain as a strategic backdrop that is not fully used, but instead showcased as a progressive framework, when at the national-level short term temporary practices and increasing entry requirements close safe pathways and increase irregularity. At the local level, the expansion and spectacularisation (Varela-Huerta, 2021) of control measures are used to appease very polarised societies. On the ground, many of these practices contribute to further differentiations between *them* and *us*, making more difficult for migrants and refugees to navigate hyper-complex bureaucracies and limiting their access to rights and social protection (Vera Espinoza et al., 2021).

It is undeniable that the large increase of migration flows in South America is imposing new challenges to governments and host societies in the region. At the same time, the patchwork governance increases irregularity, criminalises migration and fuels racism. A real pragmatic approach would be to seriously assess what the increased mobility control has accomplished in the region, what impacts has on migrant population (with particular attention to gender dynamics, children and adolescents), and what is the assessment of the norms and frameworks already in place. Mobility will continue to be a constant feature of South American societies. The challenge is then how to move from a lens of crisis as the main feature of governance, to one that encourages human security and social cohesion.

## **Notes**

## **References**

L. L. Jubilut, M. Vera Espinoza, & G. Mezzanotti (Eds.), *Latin America and refugee protection: Regimes, logics and challenges* (pp. 237–255). Berghahn Books.

cias-dinamicas-migratorias-america-latina-caribe

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# **30**

# **Perú and Migration from Venezuela: From Early Adjustment to Policy Misalignment**

**Jacqueline Mazza and Nicolás Forero Villarreal**

## **Introduction**

Beginning in 2015, the world began witnessing the surreal unravelling of one of South America's strongest economies. The outflow of Venezuelans seeking refuge from both political repression and economic collapse grew exponentially. Within seven years Venezuelans fleeing their country would top 7.18 million (RV4, January 2023), putting Venezuela in league with the world's two other modern mass migration crises, Syria and Ukraine. The Venezuelan economy shrunk to one-quarter of its former size and over 75% of the remaining population is now living in extreme poverty (ENCOVI, 2021). The Inter-American Commission on Human Rights and the Organisation of American States (OAS) designated Venezuela as a country of "forced displacement" (2018). The economic-political-social "implosion" of Venezuela has created the largest mass migration crisis in Latin American and Caribbean history (Alvarez et al., 2022; Mauricia, 2019). Venezuelans have moved overwhelmingly to South American countries, which received more than 80% of all Venezuelan refugees and migrants (RV4, January 2023, Selee et al.,

J. Mazza (B)

Johns Hopkins University-SAIS-Europe, Via Benjamino Andreatta 3 (Formerly Via Belmeloro 11), Bologna, Italy e-mail<EMAIL_ADDRESS>
N. F. Villarreal Universidad de los Andes, Bogotá, Colombia e-mail<EMAIL_ADDRESS>
2019). Colombia, which shares multiple borders with Venezuela, has received the largest number of migrants—2.5 million by January 2023 (RV4, January 2023). But Perú is the number two destination country, even though it has no direct borders with Venezuela. Perú has received the second largest number of Venezuelans every year since April 2018, many walking 4,500 kilometres through neighbouring Colombia (Rossiasco, 2019). By the end of 2022, more than 1.5 million Venezuelans were resident in Perú, comprising 4% of Perú's national population and highly concentrated in the capital city of Lima and local port of Callao (RV4, January 2023).

This chapter addresses the principal question *how* and then *how well* did Perú adapt to the mass migration of Venezuelan migrants? To answer *how*, the chapter constructs a historical chronology of three phases: (I) 2015–2018; (II) 2018–early 2020; and, (III) 2020 to present (2023) and details the principal national migration policy steps taken together with the changing size and nature of the inflows of Venezuelan migrations. The three phases correspond to different Peruvian presidencies, and as the chapter will detail, each phase varied dramatically on a spectrum of receptivity and restrictiveness to Venezuelan migrants.

To answer both *how* and *how well*, the chapter draws on the principal regional literature, including economic studies and surveys, and utilises migration data of the United Nations to track the flows of migrants in and out of Perú both before and during the Venezuelan migration crisis. To specifically analyse *how well,* the chapter cites and analyses evidence on a range of impacts: bureaucratic and administrative, impacts on the Peruvian economy, labour market, and social conditions as well as impacts on the Venezuelan migrants themselves. In 2018, a unique multilateral level of aid coordination and management was created by the United Nations in response to the Venezuelan crisis, known as the Regional Interagency Coordination Platform (R4V). To further answer *how well*, the chapter explores Perú's national policies in the context of R4V's multilateral migration coordination and support that was only drawn on to a limited extent.

The first section introduces Perú's long, multi-cultural history with migration and places Venezuela's current crisis within the literature of forced displacement. The second section lays out in three phases how Perú national migration management moved from early accommodation in Phase I under Umberto Humala and Pedro Pablo Kuczynski to restrictive migration policies in Phase 2 under Martin Vizcarra to a COVID-19-dominated Phase 3 of even further restrictions that began under Martin Vizcarra and continued with the Presidencies of Pedro Castillo and Dina Botuarte. This section also describes the formation of RV4 and what became Perú's limited reliance on this resource. The chapter concludes by evaluating Perú's migration management as maladapted to the dimensions and nature of the Venezuelan forced migration crisis, creating clear contrasts with approaches undertaken by its

South American neighbours, in particular, Colombia and Argentina. Overall, the Venezuelan migration crisis has given rise to a substantial body of regional (Latin American and Caribbean) literature drawn on in this chapter. There is, however, comparatively less academic literature analysing Perú in a South-South context with regions outside of Latin America (Levaggi & Freier, 2022); this chapter thus contributes by placing Perú's challenges as part of the Global South. Even further, academic literature is only beginning to look at Venezuela as part of a more modern phenomenon of "mass" migration crises that link Syria, Ukraine, and Venezuela (Mazza & Caballero, 2022). As this chapter will argue, "mass" migration crises have a greater set of demands on countries of the Global South for which traditional national case-by-case migration management policies such as those pursued by Perú are particularly poorly suited.

#### **Perú's Migration History**

Perú's origins as the seat of the Inca Empire and indigenous culture in the Americas were fundamentally reshaped in the early colonial period by the influx of Europeans, African slaves, and Asian immigrants. From independence in 1824 to the abolition of slavery in 1854, Perú's early history was redrawn by more than a century of immigrants coming from the East and West. The draw of Perú's vast natural resources as well as commodity booms in guano and rubber attracted labourers and merchants from Spain, China, Italy, Japan as well as other countries shaping an early history of multiethnic migration. Today the impact of this early immigration made Perú into one of the most culturally and ethnically diverse nations in South America (Takenaka et al., 2010).

But beginning in the 1960s, Perú's economic and political troubles reversed the migration trend to outmigration. By the 1990s, Peruvians were fleeing hyperinflation, the terrorism toll of Sendero Luminoso, and frequent political crises. Peruvians migrated particularly to the United States, Spain, Japan, and Italy, and to the stronger regional economies of Chile and Argentina. As shown in Fig. 30.1, for more than 50 years from 1960 through 2014, Perú had become a country of net outmigration. As Fig. 30.1 demonstrates this large volume of emigration drove net emigration rates to nearly—8% of the population by 2008. The global financial crisis of 2008–9 and the return of (principally) commodity-based growth in Perú was able to slow substantially the net outflows of Peruvians after this low point. Spain, in particular, provided incentives for South Americans to return home given economic troubles in Spain.

Just prior to the Venezuelan crisis, Perú had reached a net migration rate of 0 (Fig. 30.1), but 2014 would be the last year that emigrants and immigrants netted to zero.

From the arrival of the first significant numbers of Venezuelans in 2015, Venezuelans fleeing political and economic chaos under Maduro became the principal factor transforming Perú into a net receiving nation in the modern era, with a high 3% net migration rate in 2018 when Venezuelan migrants had topped 700,000.

As shown in Fig. 30.2, Venezuelan migration to Perú escalated sharply beginning in 2017, displaying a spurt characteristic of "forced" rather than voluntary migration. The crisis unfolded in a surreal fashion: mismanagement of the oil industry and the economy, brutal repression of the opposition, then massive economic contraction, inflation spiralling to one million per cent, food shortages, widespread hunger and malnutrition, violence, criminal gangs, with the government and military the seat of drug running, and other crimes.

**Fig. 30.1** Perú: Net migration rates, 1960–2022

**Fig. 30.2** Venezuelan migrants to Perú vs. all other migrants, 2014–2022

Most internal and international migration is broadly considered to fall into the category of voluntary migrants, typically moving in search of economic opportunities, for family reunification, and/or for education (Castles et al., 2005). In contrast, involuntary or forced migration is more applicable to the current Venezuelan crisis. Reed, Ludwig, and Braslow (Reed et al., 2016) define forced migration "as coerced or involuntary movement from one's home". Involuntary migration is understood within the United Nations system as coming from four broad types of which Venezuela constitutes the first type:

According to Stankovic, Ecke, and Wirtz, forced migration refers to the "forcibly induced migration of people, for example, when migrants are forced to flee to escape conflict or persecution or become trafficked" (Stankovic et al., 2021). By 2018, the Interamerican Commission on Human Rights (IACHR) and the Organisation of American States had issued Resolution 2/ 18 clearly placing Venezuela in the category of forced migration, due to the "massive" violations of human rights, violence, and insecurity (IACHR and OAS, February 2018). The IACHR stated that not only the massive violations of human rights but also the internal economic and health crisis that Venezuela has been facing as a result of the shortage of food and medicines were factors for which, hundreds of thousands of Venezuelans were *forced to migrate* to other countries in the region as a survival strategy (IACHR and OAS, February 2018).

## **Three Phases of Venezuelan Migration**

The first "wave" of Venezuelan migrants was visible in the capital city of Lima in large numbers by 2015. These waves multiplied yearly with the exception of 2020 when the COVID-19 pandemic led to border closures for nearly a year. By 2022, the number of Venezuelan migrants in Perú reached nearly 1.3 million (87% of all immigrants) dwarfing all other migrants who numbered only 200,000 (Fig. 30.2).

The scale and the profile of these migrants-their age, gender, education, and whether they migrated with family members or alone-would change markedly in just seven years. Forced migration from Venezuela coincided and was shaped by the country's political turmoil and ongoing administrative instability (Paredes & Encinas, 2020). Since 2015, Perú's executive branch of government has been ruled by six different presidents. In 2020 alone, Perú had three different heads of State. The last six presidents of Perú have been either investigated or convicted for corruption-related charges.

The objective and content of Perú's migration policy can be most accurately described in three historical phases that followed the ups and downs of Peruvian politics: Phase 1 (2015–late 2018), Phase 2 (late 2018–March 2020), and Phase 3—COVID-19 (March 2020–2023+ ).

#### **Phase I: 2015–18: Relative Openness to Relatively Fewer Numbers**

Perú had substantially modernised its legal framework for migrants and refugees well before the start of the Venezuelan crisis. In 2002, Perú renewed its law regarding refugees, endorsing the Cartagena Declaration's definition of refugee status, which defines refugees as persons who have fled their countries or origin if their lives, safety, or freedom has been threatened by generalised violence, foreign aggression, internal conflicts, massive violations of human rights, or other circumstances that have seriously disturbed public order (Law n.º 27.891, 2002, art. 3). The definition of refugee under the Cartagena Declaration expands on the 1951 Refugee Convention, which had predominantly relied on persecution as the key element to determine refugee status (Cartagena Declaration, 1984). By 2015, Perú had already signed and ratified major international conventions related to the protection of migrants. Many experts believed the country remained faithful to Latin America's exceptionalism regarding political asylum (Blouin, 2021).

In 2015, under the government of Ollanta Humala, Perú adopted a National Migration Policy which guaranteed a relative openness to immigrants, reforming the State's migration infrastructure, and increasing frontier controls among its measures (Decree n.º 1236, 2015) This landmark decree coincided with the first wave of highly skilled and educated Venezuelan migrants arriving in Perú. Perú's 2015 National Migration Policy, however, was never truly implemented confronting both legislative and administrative obstacles. During the last year of the Humala presidency corruption-related scandals overwhelmed the capacity of the government to promote implementation of many policies, including the National Migration Policy (Quiñón et al., 2016).

The election of Pedro Pablo Kuczynski to the presidency in 2016 marked the start of Perú's more open-door policy to Venezuelan migrants, in line with a dramatic change in the country's foreign policy in opposition to the Maduro regime in Venezuela (Vidarte, 2018). In contrast to the Humala administration's ambiguity and neutrality towards the Venezuelan government, Kuczynski was adamant in denouncing human rights conditions in Venezuela and he started a regional movement to oppose the Maduro regime (Freier & Parent, 2018). The Kuczynski government created the Lima Group in 2017 to bring together regional pressure on the Maduro government. He also expelled the Venezuelan ambassador from Perú (Arcarazo Acosta et al., 2019).

Most importantly, six months after arriving to the presidency Kuczynski enacted the decree providing the Temporary Permanence Permit (hereinafter "PTP"). The PTP granted Venezuelans two years of stay and could serve as a pathway to achieve legal residence. The measure provided for the permanence of Venezuelan migrants, allowing them access to health, education most importantly employment (Supreme Decree N. 002, 2017). This first version had very flexible requirements covering Venezuelans whether they entered regularly or irregularly. The PTP was widely regarded as an accommodating move in support of migrant inclusion in Perú (Blouin & Freier, 2019, Wolfe, 2021). The PTP granted Venezuelans two years of stay and was to serve as a pathway to achieve legal residence. The PTP was renewed four times during Kuczynski's presidency. During this period, the Kuczynski administration, in particular, framed Perú's policy as one honouring how Venezuelans welcomed Peruvians during Perú's political crises of the 70 s and 80 s (Gestión, 2018).1

Even though Perú had its own economic troubles post-2015, economic studies indicate that immigrant labour has been well accommodated in the economy largely given the underlying positive economic conditions in Perú in the first years of the Venezuelan migrant crisis. Vera and Jimenez find in the specific case of Venezuelans in Perú that there was no negative impact on wages for native Peruvians. They find that the pre-2019 labour market absorbed migrant labour quite well but that was done principally by expanding jobs in the informal sector. So, although the net employment effect in Perú was positive, the growth was nearly all in informal employment (Boruchowicz et al., 2021). Perú's early national policy approach of creating a new migration instrument, the PTP, was not granted under the framework of international protection based on refugee status or asylum. Instead, it was a broader instrument intended to favour social integration and economic development of Venezuelans in Perú. In this early stage (2015–18), Perú's early openness to Venezuelan migrants was considered the"most accommodating" of all the South American receiving nations (Blouin, 2021; Selee et al., 2019; Wolfe, 2021). Perú's regional leadership towards Venezuela ended abruptly with the tumultuous fall and resignation of President Kuczynski amid a corruption-related scandal. The subsequent two phases of Peruvian migration policy would lead to substantial backtracking from its lauded initial policy.

#### **Phase II: Late 2018–March 2020: Greater Legal Restrictions, Numbers, and Exclusion**

Martin Vizcarra replaced Kuczynski as president of Perú in March 2018. From the beginning of his presidency Vizcarra signalled he would be undoing Perú's accommodating policy towards Venezuelan migrants, in particular making work authorisation more difficult to qualify for through a series of changes to the PTP. Gone from public discourse was the idea that better economic and social integration of Venezuelans would be good for Perú. In August 2018, the government introduced Decree 007 which moved up the deadline to request the PTP from 30 June 2019 to 31 December 2018 (Republic of Perú, 2018). That decree also provided that the PTP could only be requested if the entry to Peruvian territory was made before 31 October 2018. Later in October 2018, the government enacted a resolution requiring the submission of a valid passport as a requirement to access the PTP (Resolution N. 00000270), knowing full well that the Maduro government was collapsing bureaucratically and no longer issuing passport renewals.2

The increasing restrictions did not have the impact on reducing migratory flows that the Vizcarra government intended. Venezuelan migration to Perú surged past the half million mark to 700,000 by the end of 2018 (Fig. 30.2) driven by the external factors of forced migration. The Vizcarra government added to the bureaucratic burdens on the Peruvian government by failing to provide additional resources or infrastructure to process migrants under its more complicated requirements. President Vizcarra stated publicly in an interview with CNN in 2018 that Perú had reached its limits and capacity to host Venezuelan migrants, ignoring its own role in enacting requirements without resources to carry them out (CNN, 2018).

In 2019, the Vizcarra administration launched the ironicallynamed "Operation Safe Migration", going even further in restricting legal immigration and setting difficult-to-meet requirements to enter Peru legally. This policy had two principal measures. First, it created a specialised police force in charge of deporting all Venezuelan migrants that committed crimes. It also required all Venezuelan migrants wishing to enter Perú to apply for a Humanitarian Visa (Republic of Perú, 2019). The humanitarian visa required Venezuelans to present a valid passport and a certificate of criminal records that had to be duly notarised and apostilled before leaving Venezuela. There were only two Peruvian consulates in Venezuela that could process humanitarian visas, alongside three more in Colombia (Bogotá, Leticia, and Medellín) and five consulates in Ecuador (Guayaquil, Quito, Cuenca, Machala, and Loja).

The onerous requirement to possess a valid passport and go through additional procedures and qualifications for a humanitarian visa led to a surge in Venezuelan migrants asking for refugee status and asylum as the only alternatives to legally enter Perú (Camino & López Montreuil, 2020). Overnight, asylum and refugee claims skyrocketed and again the Vizcarra government was both unprepared, making no provision to handle increased claims. Venezuelans who went through the lengthy process in Perú found that the vast majority of claims were denied, even though Venezuelans fit refugee and asylum requirements under international norms. A report of the Peruvian Ministry of Foreign Affairs showed Perú received 158,311 refugee applications from Venezuelans in 2019, 548 were denied and 497 were approved, which represents just 0.3% in acceptance rate (Morales Tovar, 2019).

The enormous increase in refugee/asylum requests put a spotlight on how fragile and unprepared Perú's refugee/asylum infrastructure was. Weak implementation infrastructure is a noted common feature in Latin America despite the existence of robust legal mechanisms (Gandini et al., 2020). In the case of Perú, the asylum process was set up to take just 60 days (Camino & Montreuill, 2020).

Seeing that Ecuador had become the largest point of entry to Perú, the Vizcarra government tried to patch that hole by adding a new pre-screening application at the border through Ecuador (Camino & López Montreuil, 2020). Peruvian border authorities could now refuse entry to asylum seekers while their central office staff reviewed the request for asylum/refugee status. Perú's actions were viewed by many international NGOs and human rights advocates as being contrary to not only the Refugee Convention of 1951 (which prohibits the return or rejection at the border of asylum seekers), but also the Cartagena Declaration whose spirit had been at least embraced by Peruvian law (Amnesty International, 2020).

By early 2020, even before the COVID-19 health crisis hit, the Vizcarra government increased public attacks on Venezuelan migrants, claiming the need for greater security and border control. He promoted a hardline policy to deport Venezuelan migrants that had committed crimes, even the most minor ones. Venezuelan migrants were easy targets of the now poorly performing economy, and the negative stereotyping of Venezuelan migrants would be further accelerated once the COVID-19 crisis hit.

#### **Phase III: March 2020–2023: Dual Health and Migration Crises with Deteriorating Conditions for Migrants**

On the 15th of March 2020, the Peruvian government declared a strict State of Emergency lockdown with rising cases of COVID-19 (Republic of Perú, 2020b). Under the State of Emergency, a mandatory quarantine was enacted, and all travel was suspended by the closure of land, air, and water borders to both foreigners and Peruvian nationals. Venezuelan migration flows did dramatically decrease. What is not known is how many migrants came across porous land borders evading border control during the early COVID period. Vizcarra steered an early strict lockdown of COVID-19, but it was not able to prevent the later soaring deaths on an overwhelmed, fragile hospital system, and now collapsing economy.

Under lockdown, Venezuelan migrants who had lost the legal right to work under Phase II were now principally working in the informal sector, suddenly cut off from any way to earn a daily living as open markets were not operating. While international organisations tried to step in and help, migrants were not eligible to receive nationwide emergency cash transfers enacted by the government (Republic of Perú., 2020a) as they were in most countries of South America except for greater limitations in Chile. The national identity document (DNI) was used to qualify as a beneficiary of the cash assistance programme. Individuals with a DNI number could receive the allotted 320 soles (about \$115) a month but few qualified (Mazza & Forero Villareal, 2020).

To access the national health system, the SIS (*Seguro de Salud Integral)*, migrants were required to have legal status (at least temporary residence) or a Foreign Identification Card (*Carta de Extranjera*), except for those under five. Migrants could buy into the SIS system, but few of them could afford this. In theory, access to emergency medical assistance for those with COVID-19 was provided under an extraordinary national government measure. Nevertheless, many health providers continued to request the national identity document (DNI) or simply refused services to Venezuelans (Levaggi & Freier, 2022; Mazza & Forero Villareal, 2020).

Housing conditions for Venezuelan migrants also deteriorated greatly during the pandemic, as many were in precarious housing, without a rental contract and were thus not often protected from eviction (Mazza & Forero Villareal, 2020). Statistics indicate that in both 2018 and 2019 at least 94% of Venezuelan migrants in Perú were living in rented, many daily-rate housing (INEI, 2018). The Peruvian Ombudsperson reported in 2020 that due to the pandemic at least 39% of Venezuelans in Perú were at risk of losing their housing (República del Perú, Defensoría del Pueblo, 2020). The Peruvian government remained silent and inactive regarding evictions of Venezuelans which placed more Venezuelans on the streets during lockdowns.

In October of 2020, the government introduced the Temporary Permit Carnet (CPT) which allowed Venezuelan migrants to remain legally in Peruvian territory for one year during the health crisis. According to the Decree of 2020, the CTP must be renewed annually, and it allows Venezuelans access to health, education, and labour services. The CTP, however, had provisions discouraging its use. Venezuelans had to register and pay a fee, including an additional penalty fee for those that have overstayed their visas in Perú before the pandemic period. Despite appearing to be a similar measure to the PTP of the Kuczynski administration, the additional penalty fee was regarded by many as a particular burden to an already vulnerable population and penalised migrants who were not able to qualify for legal residence under Perú's difficult to comply with requirements (e.g. valid Venezuelan passport).

President Vizcarra played into the growing xenophobia against Venezuelans portraying migrants as criminals and carriers of COVID-19 (Aron & Castillo, 2020; Freier & Perez, 2021). Echoing the voices of Perú's leadership, the pandemic led to an increase in xenophobia against Venezuelan migrants (Freier et al., 2021; Winter, 2020). Several congressmen introduced limits on the rights of Venezuelan migrants. In 2020, a draft law was presented in the Peruvian Congress for Perú to reject and withdraw its support from the UN Migration Compact of 2018 (de la Vega et al., 2021). The increased xenophobia had little to do with evidence, a 2021 survey, for example, found that the largest immigrant areas of Lima and Callao had lower levels of non-violent crime than non-immigrant dominated areas (Boruchowicz et al., 2021).

In November of 2020, the dramatic death toll from the pandemic and continued internal political turmoil led to President Vizcarra's ousting by vote of Congress. Rather than abate, political turmoil now focused on how a succession would proceed. The incumbent president of Congress remained the interim president until elections were held in 2021. During this time, the Peruvian government did begin vaccinations, including of some Venezuelan migrants and the more systematic application of the CTP.

The 2021 elections pitted an extreme left and an extreme right candidate both of whom espoused xenophobic views of Venezuelan migrants. The winning candidate of the left, Pedro Castillo, publicly tied Venezuelan migrants to COVID-19, insecurity, and crime. When Castillo took office in July 2021, he made the situation of Venezuelan migrants even more precarious by restoring diplomatic relations with Venezuela and signalling a friendlier, less critical policy towards Maduro. The Castillo government did extend the CTP in 2022 to last two years, but this was more a bureaucratic measure rather than an attempt to improve conditions for Venezuelan migrants.

Economic and health recovery was undermined amidst growing political paralysis, and Venezuelan migrants were portrayed as part of the problem. After months of continuous changes in his cabinet and several failed impeachment votes, Castillo announced the closure of Congress in December 2021. Castillo's announcement, however, rallied most members of Congress to finally vote in favour of his impeachment accompanied by his dramatic removal from power and imprisonment on charges of conspiracy and rebellion.

The Congress named the former Vice-President, Dina Boluarte to replace Castillo. Boularte's interim government has not been recognised by several key actors in the region, including Colombia and Mexico. Domestic turmoil in Perú only worsened with tens of thousands of Peruvians protesting against the new government and its legitimacy. Boluarte's tough response to protests has been widely condemned by international organisations, national and international human rights NGOs (UN News, 2023). Domestic turmoil has overwhelmed national policy and economic recovery, migration policy being but a subset of these.

The Boluarte government introduced a National Development and Social Inclusion Policy (PNDIS) 2030 with the goal of reducing poverty to 15% in seven years. This Plan, although it recognises migration as a key issue, did not introduce any specific measure to support the inclusion of migrants (La Republica, 2023). Perú's restrictive migration policies (with some adjustments made to the COVID-19 crisis with the CTP) even if faithfully carried out would have required resources, attention to good management, and the ability to seek help from international authorities or its own small NGO community; none of these steps were undertaken.

#### **Migration Management: How Well Did It Work?**

The mass migration of millions of Venezuelans to South America represents a historic challenge for all South American receiving nations. In recognition of the extraordinary crisis presented by forced migration from Venezuela, the United Nations created a unique platform in 2018, the Regional Interagency Coordination Platform (R4V). R4V became the principal source of both regional data and information on the crisis unfolding in the region and helped guide, coordinate aid, and identify needs for international assistance in the key receiving nations (see below). Migratory management after 2018 thus became a combination of national government policies and programmes and a combination of international, national, and coordinated assistance to support Venezuelan migrants in destination countries.

Perú's national migration policies, as documented above, changed dramatically from an accommodating migration policy in Phase I to restrictive and often counterproductive policies in Phases II and III, intended to discourage inflows by enacting difficult-to-meet legal entry criteria and bureaucratic delays. In Phase III, the restrictive policies interacted with the onset of COVID-19 policies and deepening national political crises, the combination of which led to deteriorating living conditions for barely-surviving Venezuelan migrants and a near breakdown of migration management by bureaucratic inaction.

This section explores in more detail the component parts of "how well" Perú's migration management went in Phases II and III as more and poorer Venezuelans were forced out of their country. It reviews key studies, surveys, and analyses regarding Perú's bureaucratic and administrative management approach, particularly in terms of discouragement of migrant flows, bureaucratic demands on its public sector, migration policy outcomes, and impacts on Venezuelan migrants themselves. It also reviews Perú's limited use of both international assistance and international coordination under RV4 which further undermined Perú's ability to cope with mass migration.

#### **Administrative Burdens and Policy Dysfunction**

As the size of the Venezuelan migrant population exceeded all expectations by 2017–18, new bureaucratic and hard-to-meet eligibility requirements were put in place by President Vizcarra as described under Phase II. These heavy requirements were put in place with neither additional resources nor staff nor streamlined procedures. Many analysts argue this may have been intentional, a policy designed not to work as a way to discourage Venezuelans from entering the country in the first place.

There is no evidence that the increased "bureaucratic burdens approach" discouraged Venezuelans from entering Perú. Ecuador and Chile also enacted migration restrictions at the same time, so Venezuelans could not be expected to be easily diverted to a neighbouring country based on news of particular country's legal work requirements. The factors of forced migration, compelling Venezuelans to leave—political repression, hunger, collapse of health, and other basic institutions—were not responsive to a set of restrictive policies that would more appropriate for voluntary migration.

The principal impacts of Peru's difficult to comply with administrative policy were instead on i) a massive increase in the number (and percentage) of Venezuelans crossing over non-official land borders and ii) increases in those "illegally" working and residing in Perú. Irregularity increased from just 10% of all Venezuelans before late 2018 to over 50% afterwards (Chaves-González et al., 2021).

Despite increased restrictions on legal migration, Perú quickly became the number two destination country for Venezuelan migrants after Colombia. Venezuelans were particularly drawn into informal work in the cities of Lima and Callao as part of a growing diaspora of Venezuelans around Lima. Perú advanced ahead of Chile as number two beginning in April 2018 and every year thereafter, even though the biggest restrictions on migration began in December 2018 (RV4, 2022).

By enacting bureaucratic burdens to legal residence and cancelling the PTP work permit of President Kuzinski, Perú created another bureaucratic burden for itself—a "flood" of new political asylum claims they were unprepared to process. Asylum claims (for which Venezuelans qualified under international definitions) became the only viable option to those without valid passports. As with its other migration policy changes, the Vizcarra administration did not provide additional resources or capacity to handle the increased political asylum claims.

Despite Perú's refugee law which states a decision on political asylum should be granted within 60 days of presentation of the request (Republic of Perú, 2002), by 2019, less than 1% of asylum claims were processed and Venezuelans were waiting up to two years for their claims to be considered (Guerrero et al., 2020). On humanitarian visas, Venezuelan applicants have waited up to 4 years to get a response to their humanitarian visa application, a response that was typically negative (Morales, 2019). As of January 2022, Perú's Special Commission for Refugees reported that of the 615,771 applicants for refugee status; of which the vast majority were Venezuelans, only 4125 Venezuelan citizens have been recognised with refugee status (Defensoría del Pueblo, 2022). Perú's Ombudpersons's Office found that immigration and police authorities were simply not advancing the processing of refugee applications, despite the national legislative requirements (Defensoria del Pueblo, 2022).

#### **Limited Reliance on International Coordination (RV4)**

With the rapid expansion of Venezuelan migration into a regional crisis, the United Nations Secretary-General called for the IOM and UNHCR to co-lead and coordinate multilateral assistance to the key receiving nations.3 In April 2018, the R4V regional response platform was created and headquartered in Colombia. The RV4 regional coordination mechanism links the key relevant United Nations agencies and international donors, and provides up-to-date assessments of migrant needs, numbers, and profiles of migrants. In addition, R4V became a multilevel management platform that also incorporated domestic and local organisations involved in the protection of migrants creating a novel hybrid system between international, national, and non-governmental organisations.

Each receiving nation in the Latin American and Caribbean region creates a "chapter" affiliated with RV4, and that national RV4 chapter can have very different relations and reliance on the help of RV4. The chapters are made up of distinct organisations of the UN, non-governmental organisations working throughout Latin America to support Venezuelan migrants, the Catholic Church, and other organisations. State entities from the local, regional, and national level are often invited to assist at the meetings of the RV4.

The organisations that are members of the Regional Interagency Coordination Platform for Perú are active in poverty alleviation in Perú (CARE, Save the Children, *Ayuda en Acción*, World Vision). Levaggi and Freier noted that Perú had a smaller, less active NGO community pushing for greater inclusion of Venezuelan migrants which undermined both advocacy for national policy and for greater use of international resources (Levaggi & Freier, 2022).

Perú has not actively sought high levels of financing nor has finance tracked well the dramatic increase of needs as Venezuelan migrants topped over 1 million from 2019 onwards. While all countries face levels of underfunding relative to RV4's estimated needs, Perú's financing deficits are considered particularly severe. In 2022, only 17% (\$52.7 million) of the estimated \$304 million needed has been granted via the Regional Interagency Coordination Platform. (RV4, November 2022; Fig. 30.3).

Perú's lower levels of financing have been attributed in large part to its own foreign policy positions. Levaggi and Freier argue that Perú has shunned the level of international support that Colombia embraced in the Venezuelan crisis (Levaggi & Freier, 2022). They point out this trend can be traced back to the presidency of Alan Garcia who rejected large-scale international aid as a symbol that Perú had advanced beyond its third world country status.

**Fig. 30.3** International funding received by Perú for the Venezuelan migrant crisis

Additionally, RV4's platform was introduced by the time Kuczynski's government had already ended. At this point for Perú, the Vizcarra government's less open approach to migration reflected a low priority to seek funding provided through RV4. With limited national state capacity itself, Perú further constrained the effectiveness of even its more restrictive policies by not drawing sufficiently on international resources and its own non-governmental community. Local governments such as the city of Lima, already strapped by the COVID-19 crisis, were left to sort out responsibilities more rationally allocated to national governments.

#### **Deteriorating Economic and Social Impacts on Migrants Despite Labour Market Effects**

In contrast to the negative rhetoric of Phases II and III, a range of scholarly works and economic analysis found that Perú largely accommodated migrant labour and that it contributed to the countries' growth, particularly best during Phase I. The Peruvian Central Bank assessed in 2019 that migrants had contributed. 3% to GDP growth and had a net positive impact on the country's fiscal balance. The study determined these impacts were positive despite the country's 2015 slowdown (IMF, 2020). The World Bank calculated a net positive economic contribution both to the economy and the Treasury of \$365 million by 2019 (Rossiasco Uscategui, 2019). The study posited three pathways through which these results might have come: (i) from the increase in local demand for services (e.g. food, clothing, restaurants to serve migrants); (ii) from the "freeing" up Peruvian women to seek higher wage work as Venezuelans occupied a greater percentage of the lower wage informal work; and, (iii) from potentially higher productivity in the informal sector as higher skilled Venezuelans were likely more productive in these informal jobs (Boruchowicz et al., 2021). Morales and Pierola of the Interamerican Development Bank found that the economic effects on Perú were positive but generally low, except for significant effects on low-income Peruvian women, perhaps again from greater sales and being able to move up in earnings (Morales & Pierola, 2020).

The combination of the particular deleterious effects of COVID-19 on migrants and less widely available services for migrants as discussed in Phase III led to a dramatic increase in precarious daily life for migrants. Of the 1.3 million Venezuelans in Perú in January 2022, UNHCR (United Nations Commission on Refugees) estimated that 810,000 of them (over 60%) were in conditions of extreme vulnerability and require greater support in food, health, shelter, and daily living (UNHCR, January 2022). The existing high informality-over 70%-combined with low legalisation rates of migrants resulting from Phase II and III policies—led to an extraordinary rate of over 90% of Venezuelan migrants ending up working in the informal sector or selfemployed before COVID-19 hit; informality that only increased as a result of the pandemic (Mazza & Forero Villareal, 2020). Multiple studies have linked the lack of legal status for migrants in Perú to their high presence in lowskilled informal work and limited benefits, leading to poorer socio-economic conditions overall (CIUP, 2020; Koechlin et al., 2019).

The high vulnerability and informality of Venezuelans led to significant labour exploitation according to Blouin and Freier (Blouin & Freier, 2019). Migrants faced different types of discrimination with different impacts by gender (Boruchowicz et al., 2021). For example, a World Bank study found particularly discrimination in public transit against female migrants and in public places against all migrants, with males having a higher rate of discrimination than females (Boruchowicz et al., 2021).

The children of Venezuelan migrants faced increasing problems to access education even though it was in theory guaranteed to them under Peruvian law. Key problems cited identified were the lack of space in schools to include migrant children, delays in getting certification of their grades from Venezuela or taking a placement exam, and poor information given to migrant parents regarding the eligibility of their children (Blouin, 2019). A Save the Children survey in late 2021 found nearly one-quarter of Venezuelan migrant children in Lima and la Libertad ido not go to school (OCHA, 2021).

## **Misaligned Migration Policy and Its Alternatives**

To conclude, it is important to remember that Perú was dealt an extremely difficult, and unpredictable hand with the mass influx of forced migrants from Venezuela. There simply is no precedent in South America for the size of such flows and then a health crisis the scale of the COVID pandemic.

After successfully accommodating the first, and comparatively smaller wave of migrants under Phase 1, Perú switched to restrictive strategies, promoted by its political leadership yet without the national capacity nor resources to carry out even what it said were its policies. Perú's more restrictive approach was "poorly adaptive" (Aron & Castillo, 2020) both to forced migration flows as well as to creating more workable social services delivery particularly in the time of a health crisis. The road not taken would have fostered better economic integration of migrant talents, expand and strengthen its institutions, relying more heavily on an expanded non-governmental sector and international community and taking more care not to create highly discriminatory treatment of such a large group of migrants. Levaggi and Freier explain how Perú's policy choices turned counterproductive: "The country's new immigration law [late 2018] lacks institutional consolidation and there is no strong civil society to act as a counterweight to restrictive policy developments" (Levaggi & Freier, 2022, 311).

Accommodating migrants on a mass scale was not in Perú's modern historical experience as it had been for neighbouring Argentina, although Perú did have a post-colonial experience to draw on. Argentina was able to do a better job at integrating Venezuelans, albeit at smaller numbers (Levaggi and Freier, 2022). Argentina had learned the lessons of how legal status, institutional capacity, and labour market and social integration of migrants can contribute to national well-being. Perú's approach was the opposite. It restricted legal status with virtually no impact on diminishing flows, merely increasing the precariousness of Venezuelans living in Perú and reducing more positive impacts on the economy. Levaggi and Freier note that Argentina was better able to integrate Venezuelan refugees for three reasons: smaller numbers and higher socio-economic characteristics of Venezuelans, a progressive legislative framework, and the prominent role of civil society actors in pushing for more inclusive public policies (Levaggi & Freier, 2022).

Perú's policy became more misaligned to better socio-economic performance as migration levels rose. A more productive use of resources would be to invest in more universal migration management and better integration of migrants in the local economy. A less burdensome administrative alternative would have been to grant migration status based on group or country-based criteria rather than individual, case-by-case proceedings. Other South American countries used more group-based criteria with greater administrative ease; Brazil determined a priori that all Venezuelans were designated refugees. Colombia, the country with the greatest number of Venezuelans by far, took the bold step of granting all Colombian Temporary Protective Status (TPS) (Freier et al., 2021). The group-based designation enabled Colombia to register over 900,000 Venezuelans for 10-year TPS work and residency status just by mid-2022 (*Migración* Colombia, 2022).

De Haas has written about the importance of states in shaping favourable conditions for a positive developmental role for migration (De Haas, 2010). While the education levels of Venezuelan migrants decreased overtime in Perú, the overall high level of education represented a "brain bonus" to Perú that was not taken advantage of. Adequate state capacity to advance development via migration includes fiscal resources, administrative capacity, technical knowledge, legal and political capacity, and territorial control (Cingolani, 2013). The World Bank and others argue that what most helps determine positive economic impact are the conditions in destination countries and Perú was in a favourable moment in the early phase of Venezuelan migration with a complementary migration policy (Boruchowicz et al., 2021). This World Bank study argued that Perú's high informality rate, typically considered a liability, gave the country greater flexibility to deal with the shock of migrant influxes.

Perú remains something of an outlier in South America, undertaking a comparatively limited range of state actions to integrate or accommodate the escalating migrant population. Cynthia Aronson of the Wilson Center noted that Colombia and Ecuador are proceeding with integration policies at a much faster pace than Perú (Arnson, 2019). Perú does provide international experience in the contrasting lessons between its Phase I and its Phases II–III policies, two periods that contrasted both in "how" and "how well" it responded to forced migration from Venezuela. Today, Peru remains a contrast between what could have been a greater contributory role to economic growth and humanitarian outreach rather than a policy approach more associated with a mass of marginalised informal workers, maligned by Perú's political leadership. Learning how to advance national development while adapting to large migration flows is becoming ever relevant to the Global South as they face the out-of-size role human migration now plays in the twenty-first century.

**Acknowledgements** The authors would like to thank Guillermo Caballero Ferreira for his superb research assistance.

## **Notes**

#### **References**

*de acogida*. Available at https://www.migrationportal.org/es/resource/propuestapolitica-publica-4-migracion-venezolana-salud-mental-intervenciones-migrantescomunidades-acogida/

007-2018. Available at https://busquedas.elperuano.pe/normaslegales/modificanlineamientos-para-el-otorgamiento-del-permiso-temp-decreto-supremo-n-007- 2018-in-1682426-2/#:~:text=Los%20presentes%20lineamientos%20tienen% 20por,31%20de%20octubre%20de%202018.%E2%80%9D

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# **31**

# **The "ASEAN Way" in Migration Governance**

#### **Rey P. Asis and Carlos L. Maningat**

### **Introduction: Migration in the ASEAN Region**

Southeast Asia is no stranger to large movements of people, as it was home to transnational labour migration mainly due to empire-wide sourcing of labour during the late nineteenth century and then the emigration of Chinese and Indian migrants up until the mid-twentieth century (Kaur, 2007, 2008). International migrant stock for Association of Southeast Asian Nation (ASEAN)1 was recorded at 23.6 million in 2020, 13.44% higher than in 2015, and accounts for 8.4% of the 281 million total migrant stock (UN DESA, 2020). During the first year of the COVID-19 pandemic, overseas deployment sharply dropped in several ASEAN member-states, notably for the Philippines (−78%), Thailand (−64%) and Indonesia (−59%) (ABDI, 2022).

Various studies have pointed out that the uneven economic development and wage differentials across the region, aside from generally porous borders,

R. P. Asis

Asia Pacific Mission for Migrants, G/F, No. 2 Jordan Road, Kowloon, Hong Kong SAR

e-mail<EMAIL_ADDRESS>
C. L. Maningat (B) Ecumenical Institute for Labor Education and Research, Inc, Quezon City, Philippines e-mail<EMAIL_ADDRESS>
contribute to increasing levels of migrant mobility among ASEAN countries (see Kaur, 2007; Kikkawa & Suan, 2019; Basir, 2019). Two principal migration corridors have been documented: the archipelagic ASEAN corridor and the Mekong sub-regional corridor. In the first, Malaysia, Singapore and Brunei are the major destination countries, importing workers largely from Indonesia and the Philippines. In the second, Thailand is the main destination for migrant workers from countries through which the Mekong River flows, specifically, Burma, Cambodia, Lao PDR and Vietnam (Kaur, 2007).

It is acknowledged that the vast majority of migrants, roughly nine out of every ten, searching for work within ASEAN are low-skilled or semiskilled (Orbeta, 2013). Despite this, regional frameworks such as the ASEAN Economic Community (AEC) Blueprint only cover the flow of professionals and skilled manpower, and do not cover the much larger flow of unskilled and semi-skilled workers. As noted by Geiger (2015, 190), the governments in the region tend to be less welcoming towards low-skilled migrant workers, "who are subject to various restrictive policies pertaining to such activities as switching jobs, bringing families with them, or pursuing permanent settlement in the host country." Skeldon (2009, 13) wrote that Asian economies "operate essentially exclusive immigration policies" which are different from those in Australia, Canada or the United States of America, while Lavenex and Piper (2022) use the ASEAN case as an example of a model wherein cooperation from "above" is least formalised, contrary to the top-down regional migration governance of the European Union and, to a certain extent, the African Union.

Migration patterns, particularly irregular migration, have led to most governments in the region endeavouring to exert tighter control over crossborder movements through national policies and bilateral agreements and by linking their security interests to the wider Asia Pacific region in the ASEAN Regional Forum (Kaur, 2007). Part of the irregular migration flows in the region is the movement of refugees: in Northern ASEAN countries where refugees from Vietnam, Cambodia, Burma and Laos settled in Thailand, and in Sabah, Malaysia where Filipinos fleeing the conflict in Mindanao in the 1970s sought refuge (see Battistela, 2002). Human trafficking remains a pressing concern, with more than 85% of victims trafficked within the Southeast Asia region with Malaysia and Thailand as leading destination countries (Luong, 2020).

The share of female migrants originating from Southeast Asia is close to 50%, which is higher than the global average (see also Bastia and Piper, this volume). Yamanaka and Piper (2005, 1) note that the traditional unequal gender ideology and hierarchy in the region "mediates between state migration policy and global labour demands, thus producing employment opportunities and constraints that are segregated by sex." Elias (2020) points out the lack of state support for social reproductive labour as among the reasons for the dependence of well-off households in the ASEAN region on live-in domestic workers who are mostly women. Female migrants in the region are highly vulnerable to widespread abusive practices, and generally work in the informal service economies of their destination countries often under unprotected and undocumented status. But there were some inroads for female migrant workers into the formal economy, mainly in the manufacturing where they could be paid lower wages compared to male workers, for instance in Singapore, Malaysia and Thailand (Kaur, 2007).

## **The "ASEAN Way" in Migration Governance: Disengagement, Decentralisation**

Based on available literature seeking to decode the ASEAN approach in migration governance, two fundamental features can be identified. Firstly, there is disengagement from international commitments on migration and human rights, and secondly, decentralisation of recruitment in the migrant labour market. Such an approach places migrant workers, most especially those who are undocumented and in a very vulnerable and precarious situation, while at the same time creating a space for contestations from "below," i.e. from civil society groups which seek to fill in the gaps or challenge the policy framework on migration.

#### **Disengagement, Non-interference**

While regional frameworks and numerous bilateral agreements on migration are already in place, Southeast Asian countries have, for a long time, exhibited a disengaged stance as far as entering into and enforcing legal instruments on migration and human rights are concerned. This attitude is reflected in the very limited ratification or concurrence with international instruments. For instance, Indonesia and the Philippines are the only two ASEAN countries which ratified the 1990 United Nations Migrant Workers Convention. As for the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, there are a limited number of countries that are signatories: Indonesia, Vietnam, Singapore and Thailand who signed most recently.

Notably, the 1967 ASEAN founding document did not touch on labour mobility, and it was only in 1995 that limited provisions on labour mobility were tackled under the 1995 Framework Agreement on Services (AFAS) (Lavenex & Piper, 2022). In 1966, the Principles of Bangkok on the Status and Treatment of Refugees were adopted, with a final version only affirmed in 2011 which are merely declaratory and non-binding and are merely aimed at inspiring member-states to enact national legislation (Moretti, 2016). In 2012, ASEAN ministers signed the Agreement on Movement of Natural Persons which is largely linked to investment and business flows to facilitate the temporary movement of highly skilled professionals. These provisions affect only a very small fraction of the total migrant flows as informal migration movements constitute more than half of the migrants flows in the region. Moreover, implementation has been poor (Jurje & Lavenex, 2018).

This reluctance on the part of Southeast Asian countries to enter into or enforce international, regional and multilateral instruments, frameworks and commitments on migration and human rights is rooted in the general ASEAN principle of non-interference. Corthay (2015) explains that one reason for this approach is the racial and cultural diversity among ASEAN countries, combined with the weak state structures and a lack of stable regime legitimacy: hence the policy of non-interference is intended to prevent the aggravation of conflicts. Acharya (2017) describes this preference for an explicitly non-legalistic, voluntarist mode of governance as the "ASEAN Way."

Representing a departure from the absence of monitoring mechanisms in ASEAN (Nikomborirak et al., 2013), Member States adopted in 2007 the Declaration on Protection and Promotion of the Rights of Migrant Workers, which, ten years later, was revamped into the 2017 ASEAN Consensus on The Protection and Promotion of The Rights of Migrant Workers. But Piper and Iredale (2003) have noted that the Consensus only applies to legally resident migrant workers, and that it is much more limited than the 1990 UN Migrant Workers Convention. Again, the large irregular migration flows that exist in the region are left out in the discussion. Bal and Gerard (2017) provide a context on the negotiations for the document which resulted in an impasse, as Indonesia became the lone voice in asserting a binding declaration for migrant workers' rights. Labour-recipient countries such as Thailand, Singapore and Malaysia registered their opposition to a legally binding instrument as migration is generally seen as a livelihood and a development strategy, a position which was later supported by the Philippines, albeit surprisingly.

In 2012, all Member States signed the ASEAN Human Rights Declaration, another non-binding agreement, which contains more protective language than other major multilateral rights treaties as it notes that migrant workers' rights "are an inalienable, integral and indivisible part of human rights and fundamental freedoms."2 In 2015, the ASEAN Convention Against Trafficking in Persons, Especially Women and Children (ACTIP) was adopted, although it only came into force in March 2017 after the Philippines became the sixth ASEAN Member State to ratify. The Convention exemplifies a criminalisation approach to trafficking, including mandating higher penalties for aggravating circumstances as well as specific penalties for participation in an "organized criminal group," laundering "proceeds of crime" and corruption (Ramji-Nogales, 2017).

ASEAN Member States have also crafted Mutual Recognition Agreements (MRAs) as another instrument for skilled labour mobility in line with the liberalisation of trade in services. While framework agreements have been completed in specific areas such as engineering services, nursing services and architecture, permission to work is still subject to domestic laws and regulations which remain to be highly restrictive in many ASEAN countries (Huelser & Heal, 2014). Thus, MRAs constitute an additional but weak and non-binding layer of institutional migration governance which only affirms the generally disengaged stance of ASEAN countries. In place of formal arrangements, countries in the region also engage in regional consultative processes (RCPs) for working out regional-level responses to issues related to migration. Examples of these include the Colombo Process, the Abu Dhabi Dialogue, the Bali Process and the Global Forum on Migration and Development (Geiger, 2015).

Since regional migration flows are not governed by binding regional mechanisms and frameworks, host and origin governments ensure the signing of bilateral agreements and memoranda of understanding (MOU) on the movement of migrant labour. Kikkawa and Suan (2019) note that Thailand has a separate MOU with the governments of Cambodia, the Lao PDR and Myanmar, while Malaysia has MOUs with countries such as Indonesia. While numerous bilateral arrangements exist in the ASEAN region, these agreements generally leave out the core issue of migrant rights protection and are primarily focused on the procedures for regulating the flow of workers (Skeldon, 2009).

#### **Decentralised Recruitment**

Alongside the generally weak and voluntary modes of regional migration governance in the ASEAN region, relations between and among private recruitment agencies, brokers, traffickers and employers have drastically flourished over the years. Goh et al. (2017) call this the "middle space" of migration that transcends statism, while Lindquist et al. (2012) refers to the "black box" of institutions, networks and people that move migrants from one point to another. Shrestha and Yeoh (2018) offered a nuanced take on the practices of brokerage and the making of migration infrastructures in Asia, moving away from the purely negative conceptions of migration brokerage under the mainstream crisis-centric narrative by taking into account shifting relations, complex historical temporalities and international labour and global migratory regimes.

It is important to note that there exists a paradox in the making of the middle space in migration or migration infrastructures particularly in Southeast Asian countries. Peck and Tickell (2002) note that such deregulation of markets has been matched by renewed state intervention while Xiang (2008, 175) frames the contradiction as the "upward concentration of capital and downward outsourcing of labour and the tension between the dispersion/ fragmentation of labour management and the centralization of migration control."

On one hand, several states in the ASEAN region have taken steps to institutionalise mechanisms for the licensing of the growing number of private recruitment agencies, although the requirements involved vary per country. In Indonesia, the number of licensed recruitment companies grew from less than 50 in 1995 to around 500 recruitment companies in 2007, sending nearly 700,000 workers abroad annually (Xiang & Lindquist, 2014). On the other hand, informal brokers fill in the gaps and facilitate irregular migration flows as exemplified by *tekongs* (former migrants) in Malaysia and *calo*  (labour brokers) in Indonesia who have established a network of contacts in destination countries (Battistela, 2022; Testaverde et al., 2017) (Table 31.1).

**Table 31.1** Licensing requirements for recruitment agencies in ASEAN's main sending countries

*Note* X = the licensing requirement is present; O = the licensing requirement is not present; ASEAN = Association of Southeast Asian Nations; IDN = Indonesia; KHM = Cambodia; LAO = Lao PDR; MMR = Myanmar; PHL = Phillipines; VNM = Vietnam *Source* Testaverda et al. (2017)

As pointed out by Lindquist et al. (2012), the relationship between licensed recruitment agencies and informal brokers constitutes a continuum rather than a dichotomy, with one functioning alongside the other. Profitmaking recruiters for instance are accused of manufacturing irregularity by bypassing state regulations, imposing onerous debts on migrants that lead to debt bondage, deceiving migrants about the terms of employment and inflicting emotional or physical violence on migrants (Goh et al., 2017). Interestingly, Molland (2022) demonstrates that increased efforts to legalise migration channels did not lead to a decline or alteration of brokering services and dubious transactions, using the case of the commercial sex industry along the Thai-Lao border. In fact, it is suggested that transparent and deceptive recruitment co-exist and are characterised by asymmetrical relationships and patronage, and that "trafficking is taking place in the very same contexts that are deemed 'safe' by anti-trafficking programs" (Molland, 2022, 117). Young Lao sex workers are playing the role of "dilettante-brokers" as they recruit from their informal social networks upon their return. Others have also shown that increased regulation of migration flows can lead to increased vulnerability, as migration brokers, migrants and employers seek ways to circumvent what are perceived as onerous or unfair restrictions (see Yamanaka & Piper, 2006).

Testaverde et al. (2017) note that several ASEAN countries have used selfenforcement and public ranking of recruitment agencies as a tactic to improve the recruitment process—which is itself a form of labour market deregulation. This approach is underscored in no less than the 2018 UN Global Compact for Safe, Orderly and Regular Migration, which seeks to "enhance the "availability and flexibility of pathways for regular migration," and to "facilitate fair and ethical recruitment and safeguard conditions that ensure decent work" as among its key objectives.3 Under the devolved setting, employment agents and recruiters on whom the placement of migrant domestic workers produce paperwork, bear risks and responsibilities and administer a "debt-financed migration regime" as particularly illustrated in Singapore (Goh et al., 2017). Recruiters and employment agents exercise functions in regulating worker mobilities—from control of entry, recruitment, health checks, placement, labour market segmentation, financing, training and repatriation, among others. As businesses, they also respond to forces of supply and demand, matching the needs of families for domestic services such as upkeep of the household, preparation of meals and care for children and elderly dependents (see Chee, 2020).

Aside from bearing the risks and regulatory functions, recruitment agencies and brokers consciously shape the image of the ideal migrant. Labour export-oriented educational institutions in the Philippines, for instance, are complicit in reinforcing existing hierarchies, steering away students from academic pursuits and redirecting them to acquire technical skills and service work to fit the global labour demand in the service sector (Shrestha & Yeoh, 2018, citing Ortiga, 2018). In the realm of recruitment of domestic workers, recruitment agencies play a key part in creating the "ideal maid" and, in the process, construct women as submissive, docile non-citizen workers (Elias & Louth, 2016). In Elias' (2020) discussion of the "labour brokerage" model, the labour-sending state accommodates the demands of the host state, ensuring outsourced regulatory functions of workers to guarantee a "quality product" in return for more favourable terms and conditions of work for its citizens.

## **Migration Policies in Labour-Sending and Labour-Receiving ASEAN Countries**

#### **Labour-Sending Countries**

From the viewpoint of labour-sending ASEAN countries such as the Philippines and Indonesia, migrant labour has become an important means of addressing poverty and generating foreign exchange through remittances while providing an escape valve for unemployment pressures (Bal & Gerard, 2017). The state's regulatory mechanisms are geared towards the facilitation of employment abroad, licensing of private recruitment agencies and predeparture trainings. As succinctly put by Elias (2020), this labour brokerage model is about "states being able to continue to send low-cost workers abroad but without significantly challenging the exploitative terms on which this takes place" (p. 32).

The following section discusses the salient features of migration governance in Indonesia, the Philippines and Vietnam as key ASEAN labour-sending countries.

#### **Indonesia**

In Indonesia, the national government has moved from a lax approach to a more state-managed system through regulation of recruitment agencies and streamlining of recruitment processes. In 2004, it passed Law No. 39/ 2004 or the National Law on the Placement and Protection of Indonesian Overseas Workers, which primarily centralised the placement and protection of migrant workers to the national government. At the same time, it devolved pre-departure activities such as training, completion of documentation requirements and enrolment in insurance programmes to private recruitment agencies. In 2006, the National Authority for the Placement and Protection of Indonesian Overseas Workers (commonly known as BNP2TKI was established for the licensing of private recruitment agencies upon the issuance of Presidential Regulation No. 81/2006. Bal and Palmer (2020, 4) note that Indonesia's labour ministry officials are in a "symbiotic relationship" with labour recruiters in order to promote the export of Indonesian labour overseas, using "overseas labour migration, and remittances earned, to offset their inability to generate meaningful employment and social protection for vast proportions of their citizens at home."

In the years that followed, Indonesia's move towards the decentralisation of migration governance to local government units contributed to the lack of coordination and clarity regarding jurisdiction and responsibility at the local level. This confusion and regulatory maze made more migrants resort to unlicensed agents to exploit loopholes and commit illegal practices (Ford & Lyons, 2013).

#### **Philippines**

Ahead of its ASEAN neighbours, the Philippines has passed major laws on migrants workers' rights and has been often cited in existing literature as model for migration governance infrastructure, although gaps in implementation remain. As early as 1974, the country had already embedded provisions on overseas contract workers in the Labour Code. Provisions on overseas contract workers in the 1974 Labour Code was "seen at that time as a stopgap measure to help arrest challenges in the economy, like the dollar shortfall and unemployment" (Dalupang, 2017).

In 1995, the country passed the Republic Act 8042, otherwise known as the Migrant Workers and Overseas Filipinos Act, which has detailed provisions and penalties for illegal recruitment. This legislation was amended in 2009 through Republic Act 10022 to introduce the following key provisions: (1) recruitment and manning agencies are required to shoulder the insurance coverage of each migrant worker deployed; (2) forging of Bilateral Labour Agreements (BLAs) with receiving country is encouraged; the BLA will specify the rights and obligations of the countries regarding grievances and settling of claims and (3) state officials who facilitate the deployment of overseas Filipino workers (OFWs) to countries that do not guarantee or follow international labour standards face dismissal from public service or disqualification from government appointments for five years (Orbeta & Abrigo, 2013). In December 2021, the country signed into law the Republic Act 116411 which created the Department of Migrant Workers. The Filipino migrants' alliance Migrante International (2022) has pointed out that the creation of the new department only further institutionalised the existing labour export thrust of the national government.

Private deployment agencies sit at the centre of the deployment management system in the Philippines, as they facilitate the biggest proportion of migrant workers. Except for government-to-government arrangements and a few name-hires (or those workers who have found employment without assistance from the government or from private recruitment agencies), deployment can only be undertaken through private recruitment agencies (Orbeta, 2013). Deployment is regulated through agency fees and employment standards, and through monitoring and redress.

The Philippine Overseas Employment Administration (POEA), which was established in 1982 and is currently under the newly created Department of Migrant Workers, reserves the privilege of recruiting and placing workers for overseas employment positions primarily through the licensing of private recruitment agencies and manning agencies. However, it does not prescribe a strict minimum wage for OFWs except for household service workers/ domestic workers (Orbeta & Abrigo, 2013).

#### **Vietnam**

Labour export in Vietnam was originally encouraged under the Doi Moi policy (open door policy) through the principles of market socialism and multilateralism. It was carried out through centrally managed labour exchange and technical support programmes with European socialist countries and a number of African countries in the 1970s and 1980s. In the aftermath of the USSR's collapse, the country expanded its foreign relations in 1991 and began to commercialise labour export services by empowering the Ministry of Labour, War Invalids and Social Affairs (MOLISA) to manage the flow of the international labour population (Nguyen, 2014). During the same period, the government issued Decree 370 which established the mechanism for the licensing of recruitment agencies for deployment of workers abroad. Initially, labour export services were monopolised by state-owned enterprises or certain mass organisations, until it was expanded to include domestic private firms (Ishizuka, 2013).

In 2006, Vietnam's national assembly passed the Law on Vietnamese Guest Workers under Contract which stipulates the rights and obligations of enterprises sending workers abroad under contracts. The law sets requirements and conditions for the licensing of recruitment enterprises, and outlines the responsibility of enterprises in case the worker dies or suffers from occupational accidents or abuse, among others (Nguyen, 2021). However, the legal framework only refers to protection of migrant workers under contract, and does not stipulate interventions for undocumented migrant workers.

#### **Labour-Receiving Countries**

Among ASEAN countries, Singapore and Malaysia stand out as net labourreceiving countries and have varied approaches in their governance frameworks for migrant labour. As described by Malaysia is "somewhat more generous" as it provides some forms of social security to migrant workers compared to Singapore which has no social security coverage at all to temporary migrant workers. Various authors have also pointed out that Singapore's immigration strategy is aligned with its national development strategy unlike in Malaysia (see Kaur, 2007; Orbeta et al., 2013). In terms of similarity in approach to migrant workers, both countries employ low-skilled migrant workers in specific sectors such as construction, manufacturing, service sectors and as household workers, on a transient basis (Bal & Gerard, 2017).

#### **Singapore**

Singapore's foreign labour policy is two-pronged, consisting of unrestricted inflow of foreign talents and professionals and managed inflow of foreign low-skilled labour through the use of work permits, worker levies and other criteria (Orbeta et al., 2013). Augmentation of the national labour force with migrant labour is explicitly stated as a key element in the country's economic plans and policies (Kaur, 2007).

The Employment Agencies Act, which was passed in 1958, governs the rules on the recruitment and placement of migrant domestic workers by employment agencies. The law was amended in 2011 to introduce stricter regulations on employment agencies, including the need to put up a security deposit for large employment agencies and publication of an employment agency's performance indicators on the Ministry of Manpower's website (Goh et al., 2017). Meanwhile, employment entry requirements are contained in the Employment of Foreign Workers Act signed in 1990 and which features a two-tier framework for admission of migrants. The first component is the Employment Pass for professionals and skilled migrants, and the other one is the Work Permit for less-skilled foreign workers. While skilled workers are entitled to subsidised healthcare, education and housing, migrant workers in the work permit category are excluded from social protection coverage and their employers are required to post a security bond (Kaur, 2007).

#### **Malaysia**

While Malaysia is both a sending and receiving country, it is considered a net receiver due to its dependence on contract migrant workers (Orbeta et al., 2013). It is also confronted with the challenge of large numbers of irregular migrant workers within its borders, owing to the fact that it had no mechanism for the legal recruitment and employment of low-skilled workers up until 1992 (Orbeta, 2013). As noted by Hickey et al. (2013), Malaysia's framing of migration and the influx of irregular migrant workers in particular as a national security problem has led to many cases of abuse and maltreatment, and has been the subject of growing criticisms domestically and by the international community.

Regulatory legislation and governance of foreign workforce distinguishes migrants as "pegawai dagang" or expatriates, and *pekerja asing* or foreign contract workers. There are correspondingly two types of employment-related work permits or work visas, namely an employment or work pass (Pas Penggajian) for expatriates, and a work permit or contract worker pass (Pas Lawatan Kerja Sementara) or visit pass for the temporary (contract) employment of less-skilled workers, including domestic workers (Kaur, 2008).

## **The Role of Civil Society in Migration Governance**

Country-level frameworks in migration governance, which for the most part focus on regulating the licensing of recruitment agencies for labour-sending countries and that which regulate the inflow of low-skilled migrant labour for labour-receiving countries, have left wide gaps for civil society organisations (CSOs) to intervene. Interventions and engagements by civil society groups and migrants' organisations take the form of advocacy work for improved migration governance frameworks at the international, regional and national levels, stronger regulation of recruitment agencies, provision of support services to migrants suffering from poor treatment and other rights violations and organising of migrant workers and support groups.

As a whole, Asia has been home to vibrant civil society space engaged in migrant rights activism (Lavenex & Piper, 2022), with Southeast Asian migrant CSOs and transnational social movements playing a notable part in calling out abuses of migrant workers. As noted by, ASEAN non-state actors, CSOs and transnational social movements in the region can invoke international law and use it "to name and shame actors who mistreat migrants." At the regional level, the Solidarity for Asian People's Advocacy (SAPA) Task Force on ASEAN and Migrant Workers, which was formed in April 2006, united various civil society groups in lobbying the ASEAN Declaration on the Protection and Promotion of the Rights of Migrant Workers (ACMW). Bal and Gerard (2017) noted that the task force was linked to focal points with domestic CSOs, which include TWC2 (Transient Workers Count Too, Singapore), Tenaganita (Malaysia), Federations of Trade Unions, Burma (Thailand), and with regional networks as well such as CARAM-Asia (Co-ordination of Action Research on AIDS and Mobility). There are also sub-regional trade union councils which work with migrant networks to call for the suspension of trade benefits contained in regional trade policies which are detrimental to workers' rights, while "network of networks" work to concretise protection of migrant workers and their families (Lavenex & Piper, 2022). Gerard (2014) notes however that civil society engagements in ASEAN-established channels have limitations, as CSOs are required to go through affiliation and with the continued lack of institutionalised political participation.

Outside formal and established channels for CSO advocacy, migrant workers are organising themselves to seek changes in the migration policies both in the host country and their country of origin. Exercising their agency, Southeast Asian migrants have been very active in a broad range of advocacy work for rights protection and in challenging unjust policies. For advocacy organisations, the Philippines has served as a model given the depth and breadth of migrant rights advocacy efforts (Chavez & Piper, 2015). This stems from the long history of vibrant social movements and migrant worker activism in the country (Piper & Rother, 2021). Transnational Filipino migrants' alliance Migrante International has actively opposed and criticised the Philippines' systematic brokering of migrant workers while assisting distressed overseas Filipino workers and their families.

Piper (2010) lists the expressions of migrants' rights claims in various campaigns and contexts, from the "right to be paid" campaign by Tenaganita in Malaysia, to one-day off and opposition to impending wage cuts by Southeast Asian migrants in Hong Kong, the regulation of recruitment agencies in the origin countries and campaigning for the rights of migrants' families in the Philippines. In the case of Indonesia, the preoccupation of immigration officials with enforcement issues in regulating borders has left gaps on providing legal services and other assistance to migrants, which are being filled by churches, trade unions and NGOs, functioning as components of the state migration management model (Ford & Lyons, 2013).

Regional advocacy networks have taken on the crusade for fair and ethical recruitment of migrants by private enterprises which is reflective of the emphasis in the agenda of international organisations such as the International Labour Organisation (ILO) and the International Organisation for Migration (IOM). More recently, these international organisations have advocated licensing, regulating and incentivising ethical recruitment in the industry (Gordon, 2015; Jones, 2015; Tayah, 2016). For instance, the IOM is promoting the International Recruitment Integrity System (IRIS), which focuses on developing an accreditation framework for recruitment, while the ILO has a multi-stakeholder Fair Recruitment Initiative. More concretely, the UN Global Compact for Safe, Orderly and Regular Migration lists among its objectives the facilitation of fair and ethical recruitment to ensure decent work.

Elias (2020) sees a dilemma in advocating both for migrant workers' rights and for more ethical standards in the recruitment of migrant workers, noting that the "search for practical solutions to migration governance that uphold the labour brokerage model perpetuates a dehumanising model of migration in which the migrant worker is seen largely as product" (p. 24). The Open Working Group on Labour Migration and Recruitment has also acknowledged the limits of such model, as solutions to recruitment enable the private enterprises' profit motive and the state's desperation to deploy workers abroad.4

## **Conclusion**

Unlike the European Union (EU) which has been characterised as a regional migration regime, ASEAN demonstrates a disengaged and decentralised framework for migration governance wherein a host of actors—from countrylevel policymakers and regulators to private sector recruitment agencies and civil society groups fill in the gaps. While the ASEAN adopts the human rights framework in its declarations and multilateral engagements related to migration, it does little in following up on the commitments of its memberstates in line with its time-honoured principle of non-interference. Such stance has left a huge space for contestations and engagements from below, although formal channels for CSO engagement remain limited and selective. Civil society groups and transnational networks have for the longest time engaged ASEAN member-states in established platforms, although the results have only manifested in the language of declarations while decisive ASEAN action on the refugee crisis, sex trafficking and issues related to labour conditions of migrant workers in the region have yet to materialise.

At the national level, the labour brokerage model stands out as the common feature across the Southeast Asian region, with regulatory mechanisms treating migrants as labour for export-import. Labour-sending countries merely facilitate the deployment of overseas workers mainly through licensing of recruitment agencies and bilateral agreements while labourreceiving countries tap migrant workers for both professional and low-skilled jobs, albeit with different sets of discriminatory migration policies. Quite interestingly, informal brokers ("tekong," "calo" and fixers) exist alongside formal labour brokerage channels as workers try to circumvent migration policies and regulations all in the name of seeking better opportunities abroad. Intrinsic in the labour brokerage model is the outsourcing of risks and responsibilities by state instrumentalities to private recruitment agencies, informal brokers and loose social networks, and here lies the problem as far as accountability over abuses is concerned.

Southeast Asian migrant workers, who are the primary stakeholders in the complex migration governance ecosystem, are asserting their voice in various spaces to influence policymaking and to pressure governments to act on their demands. However, their meaningful participation in established ASEAN platforms and channels have yet to be institutionalised. There is a need to reflect on the current migrant rights advocacy in the region, with the aim of leveraging engagements to truly empower migrant workers and raise their capacities to organise and lobby for significant reforms.

#### **Notes**

1. The Association of Southeast Asian Nations, or ASEAN, is the regional organisation of 10 member-states in Southeast Asia, namely Brunei, Cambodia, Indonesia, Laos, Malaysia, Myanmar, the Philippines, Singapore, Thailand and Vietnam. It was established on 8 August 1967 in Bangkok, Thailand with the signing of the ASEAN Declaration.

#### **References**

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# **32**

## **Unfair and Unjust: Temporary Labour Migration Programmes in and from Asia and the Pacific as Barriers to Migrant Justice**

**Pia Oberoi and Kate Sheill**

## **Introduction**

Access to justice in the context of migration is often centred on the formal or practical access of migrants to systems of justice, both in the country of destination as well as their origin countries (in the context of portability of benefits or remedies, for instance) including access to informal institutions, such as customary frameworks, and quasi-judicial alternative dispute mechanisms. The United Nations (UN) Special Rapporteur on the human rights of migrants has asserted that "[e]ffective access to justice means that everyone, without discrimination, has the right to access the system provided for conflict resolution and the restoration of rights" (UN, 2018a, para. 7). He elaborates further that the key elements that make up effective access to justice include the right to legal aid and representation, the right to information and an interpreter, the right to consular assistance, the competent authority to which access is provided, as well as remedies and redress.

From numerous studies and the testimony of migrant workers employed on temporary labour migration programmes (TLMPs), we know that many are consistently excluded by policy or practice from access to justice and remedies for human rights abuses whether in the workplace or outside (UN,

P. Oberoi (B)

UN Secretariat Building, Rajadamnoen Nok Avenue, Bangkok 10200, Thailand e-mail<EMAIL_ADDRESS>
K. Sheill Independent Human Rights Consultant, Bangkok, Thailand

2022b). A range of barriers function to keep justice out of reach for migrant workers on such programmes, who face multiple obstacles in navigating nonjudicial, often employer-led, dispute resolution and mediation mechanisms or accessing legal services and the judicial system. These include their lack of knowledge of the local law, the precarity of their status in the country, prohibition of or restrictions on their right to freedom of association, language and cultural barriers and the requirements of a foreign jurisdiction.

While we concur that enhancing remedy for migrant workers is an important facet of a rights-based approach to labour migration, we argue in this chapter that it is not enough. Improving access to justice for migrants on TLMPs or ensuring that the programmes themselves are "lawful" (in terms of their compliance with domestic legal standards), is not sufficient in itself to ensure that these pathways promote human rights and dignity in their design, scope and implementation. Nor would it prevent in the first place the human rights abuses often reported on the schemes. In this inquiry, we seek to go further in our understanding of the concept of justice within the context of TLMPs, including but going beyond the principle of "access to justice" and building on concepts of social justice and fairness.