Is Free Movement in Europe Unusual? The Recent Open Borders Policy in South America

Dr Diego Acosta Arcarazo, Lecturer in Law at the University of Bristol, and member of the research project Prospects for International Migration Governance (MIGPROSP)

While the freedom of movement within the European Union (EU) faces criticism and limitations from certain political and media outlets, other areas of the globe, such as South America, are embracing similar systems. This highlights that the EU model isn’t unusual, contrary to some opinions. Examining these different regional approaches offers valuable insights for refining existing legislation and policies. Notably, the development of South American citizenship and the MERCOSUR Residence Agreement, which aims to create an open border zone, deserves close attention from Europe.

Free Movement of People in South America

The concept of regional free movement in South America dates back to at least the 1970s, with the Andean Community attempting, albeit unsuccessfully, to implement it. MERCOSUR, a regional organization established in 1991 comprising Brazil, Argentina, Paraguay, Venezuela, and Uruguay (with Paraguay currently suspended), later took up the mantle.

Adopted in 2002 and enacted in 2009, the MERCOSUR Residence Agreement aims to manage intra-regional migration and has significantly altered the migration landscape for South Americans. The agreement allows citizens of MERCOSUR and Associate Member States to live and work in another member state for two years. This temporary residency can become permanent if the individual demonstrates the ability to support themselves and their families. The agreement also guarantees rights such as the right to work, equal treatment in the workplace, family reunification, and children’s access to education. All South American countries, not just MERCOSUR members, have ratified and implemented the agreement, with the exception of Venezuela, where it is under discussion, and Surinam and Guyana, where it awaits adoption.

Comparing the MERCOSUR Residence Agreement and the EU Directive on Citizens’ Rights

Several differences exist between MERCOSUR’s Residence Agreement and the EU’s system of free movement. Firstly, they differ in terms of who can move freely. Unlike the EU, which requires employment or proof of sufficient resources for stays longer than three months, South American citizens can reside in another member state for up to two years with only identification and a clean criminal record for the past five years. However, individuals bear the burden of proving they pose no threat to public policy or security under the MERCOSUR agreement. Conversely, in Europe, national authorities must demonstrate that a person endangers public policy or security.

Secondly, there are differences in concept and implementation. In South America, free movement isn’t a fundamental freedom but rather a result of the MERCOSUR Residence Agreement, an international treaty lacking robust enforcement mechanisms within the region. Unlike the EU, MERCOSUR lacks a Commission to initiate infringement proceedings or a Court of Justice for final interpretation. Disputes are resolved informally within the MERCOSUR Migration Forum, composed of migration officials. This leads to inconsistent application of the agreement. For example, Argentina and Brazil implement it without restrictions, while Chile applies it only to nationals of specific countries. Ecuador imposes high fees for residency permits, which wouldn’t be permitted in the EU. Uruguay demonstrates a more generous approach, recently allowing MERCOSUR and Associate State nationals to acquire permanent residency directly by proving citizenship.

Furthermore, the agreement is unclear on many fronts. While it grants the right to family reunification, it doesn’t define family members. It advocates for equal treatment in social, economic, and cultural rights without elaborating on this provision. In the EU, both issues have been subject to ongoing legal debate. Additionally, the agreement doesn’t offer regional citizens the same level of protection against expulsion as the EU. Should an individual fail to transition from temporary to permanent residency after two years, their status falls under national law, outside the agreement’s purview.

The Future of Citizenship in South America

The MERCOSUR Residence Agreement is one step towards establishing a regional citizenship in South America by 2020. Other proposed agreements within MERCOSUR and the Andean Community, if enacted, would further expand free movement rights, not only for citizens but also for long-term residents from outside the region, going beyond the current EU system. This aligns with the vision advocated by some scholars, NGOs, think tanks, and MEPs in Europe.

South America’s progressive stance on migration over the past 15 years, exemplified by the 2013 Buenos Aires declaration advocating for the human right to migration, recognizing migrants as legal subjects, and rejecting the criminalization of irregular migration, makes these developments worthy of study. They offer potential policy lessons for both regions and challenge existing assumptions on managing mobility.