South America

Introduction

South America is made up of 12 countries, with all of them, except for Guyana, Suriname, and Venezuela, being part of at least one operational multilateral free movement regime. Guyana and Suriname are part of the Caribbean Community and Common Market (CARICOM), and therefore, they can be found on the Caribbean map. Venezuela's membership in the Common Market of the South (MERCOSUR) was suspended in 2017 and had not been restored as of January 1, 2024.

The Freemove project has conducted an analysis of MERCOSUR and the Andean Community (CAN). MERCOSUR consists of two different regimes, which the user can explore further, while the CAN only has one regime that has gone through two different phases. It's worth noting that this project does not cover the Pacific Alliance or the Union of South American Nations (UNASUR) since they have not adopted any legal instrument to achieve free movement of people despite having this objective in their founding treaties.

South America has several bilateral regimes, with a total of seven in place. As of 1 January 2024, four of these are still active. However, two regimes (Argentina-Bolivia and Argentina-Uruguay) were discontinued after the MERCOSUR Residence Agreements were put into effect in 2009. Another regime (Argentina-Paraguay) had two treaties signed but never ratified. The Freemove project has analyzed all seven of these bilateral regimes.

Over the past 30 years, South America has made significant progress in the area of human mobility, with more countries adopting international instruments and granting rights to individuals in such situations. In 1992, there were no regimes in place, but in 2024, there are now seven regimes (three multilateral and four bilateral) that are active. In addition, Argentina, Brazil and Uruguay offer free movement rights in their domestic laws to nationals of Guyana, Suriname, and Venezuela without the need for reciprocal treatment.

Further reading:

Organización Internacional para las Migraciones, Evaluación del Acuerdo de Residencia del MERCOSUR y su incidencia en el acceso a derechos de los migrantes, Cuadernos Migratorios 9, Buenos Aires, 2018.

Ignacio Odriozola, Veinte años del Acuerdo de Residencia del Mercosur: la llave hacia la regularidad migratoria en la región, CAREF - Comisión Argentina para Refugiados y Migrantes; Centro de Estudios Legales y Sociales - CELS, Buenos Aires, 2023.

Diego Acosta e Ignacio Odriozola, ‘Acuerdo de Residencia MERCOSUR y Regularización en Argentina: La Ilegalidad de la Aplicación del Artículo 29 de la Ley de Migraciones a los Nacionales de Países de América del Sur’, Revista Anual del Ministerio Público de la Defensa, 2022, 17, pp. 23-36.

INTRODUCTION

Argentina and Bolivia signed a Migration Covenant in 1998, aware of the human rights treaties they had ratified and recognising their shared responsibility in organising migration flows. The covenant allowed free movement between the two countries and was followed by three Additional Protocols in 1999, 2000, and 2003 that modified certain regime aspects. In 2004, both countries adopted a new Migratory Agreement that aimed to incentivise the free movement of people, mentioning progress and development, among other factors. The treaty was later modified in 2009 through an Interpretative and Operative Agreement. However, the bilateral free movement regime between both countries was discontinued in 2016 when the Migratory Agreement was not renewed. Nonetheless, since 2009, both countries have been governed by the multilateral regime established by the MERCOSUR Residence Agreement, Bolivia and Chile.

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INTRODUCTION

In 1998, Argentina and Peru considered the various human rights international instruments both countries had ratified and agreed on their shared responsibility to adopt measures organising migration flows due to the difficulties some migrants faced in accessing their rights. In line with this, they decided to adopt a Migration Covenant establishing a free movement regime. Later, they adopted two Additional Protocols in 1999 and 2002, respectively, and an Agreement by Exchange of Notes in 2004 that modified and interpreted certain aspects of the Covenant. In 2007, both countries decided to adopt an Agreement on Residence for Nationals of both countries, which took into account the MERCOSUR Residence Agreement. The Agreement aims to provide a solution to the migratory situation of certain nationals to more effectively provide for their inclusion in the host society. It has been in force since 10 December 2009. On 28 June 2011, Peru acceded to the MERCOSUR Residence Agreement, Bolivia and Chile.

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INTRODUCTION

In 1998, Argentina and Paraguay signed the first Migration Covenant with the aim of organizing migration flows and improving the living conditions of migrants. The Covenant established a free movement regime taking into account the human rights international instruments ratified by both countries. Another Migration Covenant was signed in 2001, but neither of them entered into force due to a lack of ratification. Eventually, both Covenants became irrelevant when the MERCOSUR Residence Agreement came into effect in July 2009.

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INTRODUCTION

In 2005, Argentina and Brazil signed an Operative Agreement. This agreement allowed for the bilateral application of the MERCOSUR Residence Agreement between both countries. During the meeting, they also signed another agreement granting permanent residence to holders of temporary or transitory residence. While the first agreement was no longer valid after 28 July 2009, when the MERCOSUR Residence Agreement came into force, the second agreement was ratified by both countries between 2007 and 2008 and is still in effect today. It goes beyond the provisions of the MERCOSUR Residence Agreement. This means that Brazilians in Argentina and Argentinians in Brazil can obtain a permanent residence permit without first having to get a temporary two-year one, as required in the MERCOSUR Agreement.

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INTRODUCTION

In 2006, Argentina and Uruguay signed an Agreement by Exchange of Notes, which enabled the application of the MERCOSUR Residence Agreement between both countries. However, this agreement was terminated on 27 July 2009, a day before the MERCOSUR Residence Agreement came into effect, to which both countries are parties.

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INTRODUCTION

In 2010, Ecuador and Venezuela agreed to sign a Migratory Statute that established a regime of free movement between both countries. This agreement was presented as a result of the principles and norms of the UN Migrant Workers Convention. It was also driven by the need to respect human rights, the right to free movement, the desire to facilitate regular migration, and eliminate irregular flows. Additionally, it aimed at promoting bilateral integration. The Statute came into force in 2011, once both countries had ratified it. Since 2017, Venezuela has been suspended from MERCOSUR, and it never ratified the MERCOSUR Residence Agreement, Bolivia, and Chile. Therefore, this is the only free movement regime that Venezuela is currently involved in.

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INTRODUCTION

In 2013, Brazil and Uruguay signed an agreement granting permanent residence to temporary or transitory residence holders. This means that Brazilians in Uruguay and Uruguayans in Brazil can obtain a permanent residence permit without first getting a temporary two-year one, as required in the MERCOSUR Agreement. Both countries have been part of the MERCOSUR Residence Agreement since it entered into force on 28 July 2009.

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INTRODUCTION

MERCOSUR was established in 1991 to create a common market by the end of 1994, where the free circulation of goods, services, and factors of production would be ensured. The free movement of people was not explicitly mentioned in the founding Treaty. The 1994 Ouro Preto Protocol approved the organisation’s final institutional and legislative procedural framework. In 1998, the non-binding Socio-Labour Declaration was adopted and included certain rights for migrants and frontier workers. This Declaration marked the first time that the free movement of people was considered a socio-political issue rather than just an economic one. Later, in 2002, MERCOSUR signed two Residence Agreements. One agreement was directed towards nationals of its Member States, while the other one aimed to include nationals of the Member States, Bolivia and Chile, and any other Associated State that would ratify it. The free movement regime analysed under this section refers to the MERCOSUR Residence Agreement. A different section deals with the regime deriving from the MERCOSUR Residence Agreement, Bolivia and Chile.

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INTRODUCTION

 MERCOSUR was established in 1991 to create a common market by the end of 1994, where the free circulation of goods, services, and factors of production would be ensured. MERCOSUR comprises several Member States, but other Latin American countries can join as Associated States (Estados Asociados), following a particular procedure and conditions. When it is of mutual interest, the Associated States may adhere to Agreements signed by the Member States within the framework of MERCOSUR's political, social and citizen dimensions. In 2002, MERCOSUR adopted two Residence Agreements. The second aimed to include nationals of the Member States, Bolivia and Chile, and nationals of any other Associated State that would later ratify it. As of 1 January 2024, Colombia, Ecuador, and Peru have ratified the MERCOSUR Residence Agreement. Chile does not apply the Agreement to nationals from Colombia, Ecuador or Peru. By contrast, Peru and Ecuador do apply it to Chilean nationals. Colombia granted Chilean nationals residence permits under the Agreement until 2019. It also used it for Venezuelan nationals until 2014.

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INTRODUCTION

The Andean Community (CAN) was formed in 1969 with the signing of the Cartagena Treaty by Bolivia, Chile, Colombia, Ecuador, and Peru. It aimed to promote development, improve living standards, and accelerate growth through economic integration. Initially, the free movement of people was not a priority objective. However, in 1977, the Andean Labour Migration Instrument (Decision 116) established a procedure to hire regional workers through national labour migration offices. In 1999, the Cartagena Act was adopted, and it recognised the need to reinforce regional integration, with the free movement of people being a crucial aspect. In 2003, CAN adopted a new Andean Labour Migration Instrument (Decision 545) and several other measures. Decision 545, however, did not lay down a comprehensive free movement regime, as it only included intra-corporate transferees, frontier and seasonal workers, and those accepting a job offer in another Member State. These groups enjoy equal treatment and various rights, including family reunification. Andean nationals also derived other rights from Decisions 503, 546, and 583 adopted between 2002 and 2004.  In 2021, CAN established a comprehensive free movement regime by adopting Decision 878 on an Andean Migratory Statute.

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