South American ‘de jure’ and ‘de facto’ refugee protection : lessons from the south

Abstract

This Chapter discusses the characteristics of refugee protection in South America, including de facto protection stemming from the region’s mobility regime. In light of the recently released European Union (EU) Pact on Migration and Asylum, which adopts a sharp distinction between ‘refugees’ and ‘irregular migrants,’ the former referring to individuals who deserve protection and the latter to those who should be detained and returned (Carrera, 2020), we suggest that South America presents an interesting case of a dual regional regime for mobility and refugee protection. This regime makes the distinction between irregular entry and stay, on the one hand, and asylum seekers and refugees, on the other, almost irrelevant in practice, as irregular migrants have access to basic rights and legal residence, in many cases. The region further combines this dual human rights-focused regime with an informal regime based on policy practice, which allows people to move - and find protection - across borders.