August 2015 saw the first mass forced displacement of people from Venezuela to Colombia. Since then, the migration crisis has grown to become the world’s second largest after Syria. The UN estimates that more than 6 million people have left Venezuela, of whom almost 5 million are in Latin America; according to the migration authorities, about 31% (1,842,390) are in Colombia, the main recipient country in the region.
In Colombia, there is a direct relationship between access to rights – such as health, education and work – and having regular migration status, i.e. having a permit to stay in the country, which can be a visa or one of the special permits that have been created for Venezuelans. This relationship has shaped the Colombian state’s response to migration, but it has also highlighted the limitations of basing a strategy of care on a legal requirement, which for many people has been difficult to fulfil due to the crisis in Venezuela.
Whether a Venezuelan national can access regular migration status in Colombia depends on the documents they have and the way in which they entered the country. Before the issuance of the Temporary Protection Status for Venezuelan Migrants (ETPMV) – explained below – the possibility of accessing a visa or a Special Permit to Stay (PEP) depended mainly on the person having a passport. However, obtaining a Venezuelan passport can take months due to costs, administrative hurdles and corruption.
In addition to the difficulties in accessing a passport, migrants cannot access visas because of the costs – a study visa application costs $50, and if approved the visa can cost between $50 and $400 depending on the type – or because of the particular requirements of some visas, such as providing apostilled documents, another procedure that is almost impossible in Venezuela. Considering this situation, in 2017 the national government created the PEP, a regularisation mechanism exclusively for Venezuelan nationals that authorises them to stay and work in the country for two years. However, in order to apply for this permit, it is necessary to have entered the country before certain dates, through a migration control point, so that the passport could be stamped. Continued migration meant that this measure fell short and had to be renewed several times. By the end of 2020, 56% of Venezuelan migrants in Colombia were in an irregular migratory situation, showing the limitations of the PEP.
The Colombian state’s response, supported by international cooperation, has made important advances in areas such as access to education for children and adolescents; recognition of the nationality of children born in Colombia to Venezuelan parents; and emergency medical care. However, as the PEP demonstrated, the state migration response has had a mainly humanitarian and short-term focus, which has affected migrants’ access to their rights.
People in an irregular migration situation, or whose refugee claim is pending, are not authorised to work. This has resulted in close to 90% of migrants working in the informal sector, where they are exposed to labour exploitation and face serious barriers to self-sustainability and to meeting their needs.
In terms of health, migrants who do not have a visa or permit can only receive emergency medical care, not treatment for chronic or terminal illnesses such as cancer or HIV. In most cases they do not receive the care they need. Many turn to tutela – a legal mechanism – to seek fundamental rights protection before a judge, but it takes several weeks to be resolved and does not address the underlying problem. Many are reluctant to seek these services for fear of being deported.
With regard to education, although the government has insisted that access for migrant children should be guaranteed, in practice barriers persist due to educational institutions’ lack of knowledge about these guidelines and how the migration system works or, worse, due to xenophobia. In addition, in the absence of a migration permit to be in Colombia, students have problems completing their studies, graduating and entering higher education.
To address these barriers to access to rights, generated mainly by the lack of a regular migration status, the Colombian government created the Temporary Protected Status (TPS) for Venezuelan Migrants. This measure covers people who already had a temporary permit such as the PEP, and those who were in an irregular situation and entered the country before 31 January 2021. These individuals, along with those who enter regularly in the next two years, will receive a Temporary Protection Permit (PPT), which will allow them to stay in the country for 10 years, work and access the health, pension, education and financial systems. It will also allow them to validate their professional qualifications before the Ministry of Education, enter and leave Colombian territory and eventually apply for a resident visa if they meet the requirements.
The TPS is an important and urgent step towards the integration of Venezuelan migrants, as it will allow them access to health and education and facilitate their participation in the labour market so that they can become self-sustaining and contribute to the country’s development. However, some aspects of the TPS raise concerns about the impact they could have on other fundamental rights, such as the presumption of innocence, due process and recognition of refugee status.
In relation to the presumption of innocence, the Statute establishes that, in order to be able to apply for a PPT, the person must not have administrative or judicial proceedings in progress. An ongoing proceeding is an investigation that is open but where no decision has been taken as to whether the person is responsible for the act for which he or she is being investigated. Not granting the PPT for this reason is a disproportionate requirement and a form of early sanction, as it would penalise people for whom the state is still uncertain as to their responsibility. The migration authorities should bear in mind that this type of requirement to access a benefit, permit or procedure has been considered unconstitutional by the Colombian Constitutional Court and in violation of the right to the presumption of innocence.
The TPS also jeopardises migrants’ right to due process. The decree and the resolution that regulates it establish that one of the reasons for cancelling a PPT is that the person has a ‘record of infractions of the legal system’, or that their presence is considered ‘inconvenient’ or ‘a risk to national security’. These are very broad and ambiguous concepts that can give rise to many interpretations by the officials deciding on the cancellation of the PPT. For example, running a red light is a violation of the law. Is a person’s permit to be cancelled for that reason?
The same is the case with the concept of national security. This argument has been used to advance massive and immediate expulsions, as was the case following demonstrations in 2019, without an individual analysis of cases and without guaranteeing the right to a defence. In addition, the person who applies for the TPS cannot challenge the decision that denies or cancels the PPT, as appeals procedures do not apply.
With regard to the application for refugee status, the TPS establishes that asylum-seekers may apply for the PPT, without this process being affected, but that once permission is granted, they will have to choose whether to accept it or renounce their refugee claim. The recognition of a person as a refugee implies that the host state must protect them, not return them to their country of origin, and extend this recognition to their nuclear family, among other obligations. These protections are not granted by the TPS.
Having to choose between a refugee application and a PPT places those seeking the protection of the Colombian state in a difficult position given the shortcomings of the refugee system. Among these deficiencies are the absence of a time limit for the state to make a decision on an application and ambiguity about whether or not refugee claimants are authorised to work. In the face of this uncertainty, it is very likely that people will be forced to renounce their refugee claim and, consequently, the rights that this recognition entails.
Although the TPS marks a new stage in Colombia’s response to migration, it still has important gaps that urgently need to be addressed. Given the worsening of the situation in Venezuela due to the pandemic, people will continue to migrate and will be forced to do so irregularly given the serious difficulties in accessing a Venezuelan passport. These people will not be able to access the TPS and will therefore face the same difficulties accessing health, education and employment as they did before the Statute came into force.
Likewise, there are migrant populations that face greater protection risks, such as binational indigenous peoples, young people, women, the lesbian, gay, bisexual, trans, intersex and queer (LGBTIQ+) population and victims of violence and migration-related crimes such as human trafficking and forced recruitment. These risks are not being made visible or addressed with a differential approach. To address these gaps, it is essential that national institutions and international cooperation agencies support local authorities not only to implement existing policies, but also to promote healthcare and socioeconomic integration programmes, among others.
Colombia has been recognised internationally for its positive response to migration. However, opening doors implies not only allowing border crossings, but also promoting policies that guarantee the effective integration of migrants and allow them to rebuild their lives in a dignified manner.
Lucía Ramírez Bolívar is a lawyer specialising in Constitutional Law from the National University of Colombia. She holds a master’s degree in Social Work from the University of Chicago. She is currently coordinator of research on migration at the Centro de Estudios Derecho, Justicia y Sociedad – Dejusticia (email@example.com). This article takes up and updates several ideas from an article previously published by the author in the 10th edition of the magazine Multijurídica al Día.