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  Number 297 | Abril 2006
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Costa Rica

Nicaragua’s Indispensable Migrants and Costa Rica’s Unconscionable New Law

Those who criticize Costa Rica’s new immigration law are dismissed as advocating an unrestricted open door policy. This fallacy is just one more attempt to legitimize a law that violates basic human rights and Costa Rica’s best traditions of solidarity, and will affect hundreds of thousands of Nicaraguan migrants.

Alberto Cortés Ramos

Nicaraguan migration to Costa Rica is nothing new. It goes back at least a hundred years, with the numbers of migrants and their motives fluctuating over time. At the end of the 19th century and beginning of the 20th, Nicaraguans migrated to work in the banana plantations on Costa Rica’s Caribbean coast and the mines in Abangares. In the 1950s, seasonal rural migration met the demand for labor on the cotton plantations. By the mid-1970s, some 50,000 Nicaraguans were officially registered in Costa Rica.

In the ensuing couple of years, with the mounting social crisis, political-military conflict and increasing repression by the Somoza dictatorship in Nicaragua, a large number of Nicaraguans migrated to other countries. It is calculated that some 280,000 people left Nicaragua at that time, at least 80,000 headed for Costa Rica. This migration was obviously more political than work-related.

In the early 1980s migration took yet another form. The migrant stream was made up mainly of people who didn’t share the goals of the Sandinista revolution or were fleeing the military conflict between the revolutionary and counterrevolutionary forces supported by the US government. There were also those who were displaced by the war raging in their part of the country, among them some 19,500 Miskitus and Sumus who emigrated to Honduras and an estimated 100,000-125,000 Nicaraguans from both sides of their country—documented and undocumented—who sought refuge in Costa Rica.

At the end of the 1980s and beginning of the 1990s, after the change in Nicaragua’s government, a large number of Nicaraguans returned home from Costa Rica, putting their hopes in the peace process and promises of development.

An increasingly varied migration

Within a few years, however, a new wave of emigration was underway in Nicaragua, this time channeled mainly towards the United States and Costa Rica. The flow of migrants to Costa Rica was more complex than in prior periods of heavy migration, with different kinds of people coming for a greater mix of motives than before. This wave includes rural-rural, urban-urban and rural-urban migration. As to the nature and period of their stay, the migrants can be roughly grouped into three categories:

1. Seasonal migrants, who come for up to a year, mainly to harvest export crops.

2. Semi-permanent migrants, who leave part of their family behind and go back to Nicaragua for visits every year or two. They are mostly involved in economic activities that require a more prolonged stay: construction, private security, domestic labor, commerce and services.

3. Permanent migrants, accompanied by their families. They tend to hold the same kinds of jobs as semi-permanent migrants.

According to Costa Rica’s 2001 census, the migrant population is a young one: 58.6% is between 20 and 40 years old and 24.9% under 20. In rural areas, the share of the migrant population between 20 and 40 is even higher, at 64%.

How many, where
and what do they do?

Nicaraguan migrants tend to be concentrated in the greater metropolitan area and in the northern and Caribbean regions of the country. According to the census, they more often live in urban than rural areas (60%-40%, respectively), although it must be remembered that the census doesn’t count people who are undocumented or who have resided in Costa Rica less than six months, and most of the rural migrant population is made up of seasonal workers who fit that description.

There are virtually the same percentages of men and women among the migrants, with a few more women (95,515) than men (95,448).

With respect to education, there are differences between the migrant population and the Nicaraguan population in general. On average, migrants tend to have more years of education than most Nicaraguans, though less than Costa Ricans. Some 65% of the migrants interviewed in a recent study had at least some high school.

Most Nicaraguan migrants don’t compete with Costa Ricans for jobs, since the labor markets are clearly segmented. Nicaraguans fill niches in the economy that Costa Ricans don’t want: largely seasonal agricultural activities, construction, domestic service, private security and, to a lesser extent, commerce.

How many are there? The mass media and certain politicians like to throw around the easy, round figure of a million Nicaraguan migrants in Costa Rica. The most commonly used figure is 800,000. These figures were heard less often for a while, after the census results were released, but unfortunately the new migration law has reactivated xenophobic attitudes among politicians and the media, who use the higher figures to justify harsher immigration regulations. Members of the academic community and other analysts who research immigration estimate that there are around 400-450,000 between January and May, the time of year when the greatest number of Nicaraguans come to Costa Rica.

Nicaragua:
A reserve army of workers

The current pattern of Nicaraguan-Costa Rican migration can be explained by the socioeconomic restructuring taking place
in the Central American region, a change that began in the mid-1980s and became more pronounced in the 1990s. Based on the neoliberal model, also known as the “Washington Consensus,” this process has been characterized by the opening up of markets, the privatization of state companies and reduction in public spending, including the layoff of large numbers of state employees. The degree to which these changes have been carried out in the different Central American countries has depended on the positions of their ruling classes, their institutional structures and the amount of social resistance. The countries that have implemented the reforms most rapidly and thoroughly are El Salvador and Nicaragua, while the slowest and most resistant are Panama and Costa Rica. Another part of the process involves attracting foreign direct investment and redirecting the region’s production to international trade, which are two particularly important pieces of the immigration puzzle.

This regional transformation—in turn, part of the globalization process—has facilitated an alignment or linking up of the socio-economic structures of Nicaragua and Costa Rica, including the labor component. On the Nicaraguan side, a large surplus labor force was created by the profound restructuring of wealth and political power that resulted from the 1990 change in government, which immediately led to a massive reduction in the army, further reductions in the public sector following those in 1987 under the Sandinista government, privatization of the financial sector and cuts in government support to rural areas, especially to small producers and peasant farmers.

The economic growth model promoted by the Nicaraguan governments since 1990 has not generated the quantity of jobs and productive projects that would make it possible to put this labor force to work. As a result, Nicaragua has become a “labor export platform,” sending workers to the United States and Costa Rica and, more recently, El Salvador. Nicaragua functions as a kind of reserve industrial army for the Costa Rican economy.

Women and Nicaraguans
made it possible

During this same period, Costa Rica began a gradual but continuous economic transformation process of its own, which included a significant diversification of exports in the three basic sectors of the economy: primary (agro-export), secondary (industry, with maquilas first in clothing and then in technology), and tertiary (services, especially tourism, trade and, most recently, call centers.)
This diversification wouldn’t have been possible if the economy hadn’t been able to draw on two important sources of “reserve” labor: Costa Rican women and Nicaraguan migrants. Thousands of middle-class Costa Rican women entered the new job markets, largely thanks to the presence of thousands of Nicaraguan women who took over the work they had previously done in their homes. In Costa Rica—as in virtually all migrant-receiving countries—migrant workers take the worst-paying, riskiest and least-skilled jobs, even though many of them have more skills than are required by the labor market in which they participate.

When we speak of the increasing transnationalizing going on between Costa Rica and Nicaragua, of the labor and economic interdependence between these two countries, we’re referring to these structural dynamics, which have created various forms of transnational or binational families divided by the border as well as mixed families in an impressive laboratory
of cultural, economic, and social mestizaje.

The migrants make a
significant contribution

This transnational migration serves two purposes. On the Nicaraguan side of the border, it has helped decrease the social pressure by reducing the demand for jobs and public services. In addition, migrants send money (remittances) back to their families, which contributes to their microeconomic subsistence and helps mitigate the macroeconomic trade deficit. Nicaraguan migrants sent home approximately US$788 million In 2003, while the sum total of Nicaraguan exports that year came to $731 million.
In Costa Rica, the migrant population has increased the supply of productive-age workers, allowing continuous economic expansion and increased profits for businesses that hire migrant workers. The rising xenophobia in Costa Rica and the undocumented status of many Nicaraguan migrants creates conditions that facilitate their exploitation and the violation of their labor rights. For example, some employers pay below the minimum wage, don’t provide workers’ compensation or insurance, require long workdays without overtime, fire workers before the three-month trial period stipulated in the contract is up to prevent them from claiming their rights, and have even been known to report the undocumented migrants working in their companies to immigration officials just before payday, so the workers are deported and can’t collect their pay.

Suffering and high social costs

The migration experience exacts a high social cost on migrants and their families, since separation causes suffering. This is the “iron law” of migration: to serve as an effective family survival strategy, the separation must last a considerable length of time. If families are reunited “too soon,” the migrant’s vulnerability in the receptor country extends to the whole family and the advantage of the income differential between the country of origin and the receptor country is lost.

Unfortunately, the governments of the region’s various countries have not addressed the costs of family separation created by migration with the seriousness they deserve, even though we are already seeing some very serious consequences. These include the migration of children with increased risk of prostitution, juvenile delinquency and increased participation of young people in violent actions, which might be at least partly explained by the absence of their parents during their childhood and adolescence.

This is the context in which to analyze Costa Rica’s new immigration law, which has several troubling aspects. These include provisions that violate migrants’ human rights, as was noted by the organizations—including the Catholic Church, public universities, NGOs and social organizations—that participated in a recent Migrant Populations Forum sponsored by the Public Ombudsman’s Office. The forum also emphasized that a more repressive law won’t solve the problems created by migration or make it possible for the receptor country to take advantage of the many positive aspects of migration.

Why was this law approved?

What led to the passage of such a repressive new law? According to an analysis by the university faculty members who participated in the forum, a combination of several external and internal factors made the law possible, and its contents reflect the climate of public opinion at the time it was drafted, at the end of the 1990s and beginning of the current decade.

Among the internal factors is the fact that migration from Nicaragua to Costa Rica reached its peak just before then, between 1995 and 2000. The law has a strong political orientation, based on the premise that migration is something threatening that must be controlled. There is also a strong international factor related to the reactions generated by the September 11 attacks in the United States, which led to stiffer US migration policies in general and toward Mexico and Latin America in particular. The post 9/11 ideology includes increasing militarization of borders and establishing a direct link between migration and terrorism—even though no Mexican or Central American migrant has been involved in any attack in the US.

Costa Ricans emigrate too

There’s a basic flaw in the new law that makes it both insufficient and inadequate: it’s not guided by any state policy on migration. And such a policy is essential because of the strategic importance of migration.
Along with the rest of Central America, Costa Rica is part of a complex migratory web. Unlike the other countries in the region, it is a receptor country: over half a million immigrants live within its borders. At the same time, however, it also generates emigration. This dynamic—seldom discussed by the media—makes it a kind of transnational migratory zone between Central America and the United States.

Approximately 15% of Costa Rica’s inhabitants are foreigners or foreign born, mostly people of working age that the country needs to reproduce its economic activities. Conversely, approximately 5% of Costa Rica’s population is living and working in the United States. The remittances these Costa Rican emigrants sent to their families back home amounted to over $200 million in 2004, a figure equal to that earned by Costa Rica’s coffee exports the same year. The existence of these two immigration-emigration dynamics and their complex causes and effects suggest that the country needs a coherent state policy on the issue, not just a migration law.

A choice, not an imposition

A state migration policy should be defined in a way that considers and addresses the various issues involved in such a complex social phenomenon. From an ethical perspective, the main objective of any migration policy should be to ensure that the decision to migrate—either into or out of the country—allows people a dignified life and leads to a better, more diverse and thus richer kind of human coexistence. The decision should not be something imposed on people as the only way they can hope to make a living, but rather the result of a choice made with relative freedom, in a context in which people who decide to migrate know that their family’s basic needs will be met. Migration should be one of many possibilities for individual and collective development.

A comprehensive migration policy should cover the following critical points: the role of both immigration and emigration in the construction of an inclusive national development process based on solidarity; the various components that influence migration, including social, cultural, labor, economic, demographic and security factors; and, most important, respect for basic human rights. Indeed, the Migrant Populations Forum proposed that the migrant population’s human rights should form the backbone of the new migration law, and that security issues should be considered in this context.

None of this, however, is considered in the new law. While diversity is a positive element for the whole of society, the new law will lead to the exclusion, rejection and “criminalizing” of migrants, which will in turn result in their failure to integrate into Costa Rican society.

The law’s “Platonism”

A state policy should also be the result of widespread national debate. Despite migration’s strategic importance, there has been no serious, well-informed and unprejudiced national debate from which both a state policy and a migration law could be derived.

On the contrary, as has been the case with other areas of strategic importance for the country, what little discussion we’ve seen has been very poor indeed, influenced by partisan opportunism, prejudices and spurious interests. Thus, it is no surprise that the laws passed do little or nothing to resolve the problems they were supposedly designed to address. As in the case of the law on illicit enrichment, the new migration law will only end up aggravating the situation.

Give the absence of strategic goals in many aspects of national development, most Legislative Assembly representatives seem to stumble into what legal specialists call the “Platonism” of the law, a kind of foolish illusion that leads people to think that by passing a law, they’ve resolved the situation. This has definitely happened with the migration issue: we have no national debate, then are presented with a poorly defined, authoritarian project that fills the vacuum left by the lack of a state policy.

Hard-line biases

Prejudice also played a part in the law’s formulation and approval, starting with the process by which the Commission on Government and Administration drafted the bill. Although a series of hearings were held in which many different sectors, social organizations and institutions participated, the bill’s orientation and contents made it clear that the legislators had a hard-line bias, with an emphasis on national security and a repressive approach to the treatment of migrants. Throughout the process, this line was espoused by the National Liberation Party bloc, followed by the Libertarian Movement Party and to a lesser extent, the Social Christian Unity Party.

Despite the well-documented participation of Migrant Populations Forum member organizations, not a single one of the observations they offered in the hearings was incorporated into the law. Those who criticize and object to the law are dismissed as advocates of an unrestricted open door policy, a fallacy designed to legitimize a law that violates basic rights and the country’s best traditions of solidarity.

The guiding thread:
National security

The logic of “national security” is the guiding thread in this law, which strengthens the coercive mechanisms used against the migrant population and increases the migration authorities’ discretionary powers in its name. One of the most troubling aspects is the increased power given to the director of migration at the expense of the Migration Council. The director now has the last word in granting visas and residence permits, again under national security criteria. This makes migrants far more vulnerable and could open the door to corruption and the abuse of power.

The new law also allows the open-ended detention of undocumented migrants, which could lead to lengthy imprisonment for people who have committed no crime other than seeking work in another land. According to the law, migrants may be detained for the “time strictly necessary,” but what does that mean? Up to now, no one could be held for more than 24 hours unless accused of a crime, but with the new law, undocumented migrants may be detained for two or three months. Migrants will also be at greater risk of violation of their right to due process, because of the increased arbitrary powers granted to the migration authorities.

One provision that will unquestionably have a negative affect on the migrant population, especially seasonal rural migrants, is the definition of the border as a 50-km-wide strip of land for purposes of migration law. This change means that people picked up by migration authorities in this strip who are undocumented or in an irregular situation will be turned away rather than deported, which will prevent them from demanding labor rights, such as payment for work done.

It’s no coincidence that this strip covers a large part of the region where sugar cane, oranges, pineapple, banana, cassava and other agroexport products requiring a large amount of seasonal migrant labor are cultivated. Migrant workers, mostly from rural areas, typically enter Costa Rica without official documents, and the new law will create an employers’ paradise by legalizing the super-exploitation of migrants—which already occurs but is not legally sanctioned.

Restrictions, loopholes and violations

The new law’s criteria on the kinds of migrants Costa Rica should allow in hearken back to the immigration policy of the Liberal period, which sought to attract white European immigrants who would help “civilize” the country and bring progress. The classist nature of the law is clear in its desire to attract investors and repel workers.

The law also includes socio-cultural restrictions by establishing sanctions against those who aid undocumented migrants. This provision will create an atmosphere of persecution and denunciation, which discourages human solidarity and could easily fuel xenophobic practices.

There is no consideration of gender issues in the law, although half of the Nicaraguan migrants are women with family-related needs that should be legally covered.

The law also violates principles established in international treaties, for example those established to protect refugees, such as the principle of innocence. Article 108 of the new law states: “The condition of refugee will not be recognized for any person with respect to whom there is reason to believe that… d) The alien could be responsible for an international crime,
in accordance with the international instruments ratified by Costa Rica and in particular the Statute of the International Criminal Court.”

The previous immigration law made it possible for illegal migrants to legalize their situation if they could demonstrate that they had stable work and support from their employer, or if they had family ties here. The new law eliminates the first of these mechanisms, leaving only the second. This will make it difficult for people to get temporary residence permits based on their work, which is the most common motive. It is clear that this change will not help regularize the situation of migrants in Costa Rica, much less encourage their integration into Costa Rican society without discrimination.

What would Costa Rica
be without them?

The new law was approved at a time in which evidence suggests that Nicaraguan migration is beginning to decline: only half as many people have been turned back at the border in recent years, and Nicaraguan emigration to El Salvador has increased. Other demographic indicators suggest that the population growth rate will decrease in both Nicaragua and Costa Rica, with medium- and long-term implications for both countries, including less demographic pressure on emigration in Nicaragua and less capacity to attract immigration in Costa Rica. In addition, within a couple of decades, Costa Rica will be in the midst of another important demographic shift, with a larger percentage of older adults who have left the labor market, whose pensions will have to be sustained by the younger population. Other countries have not been able to solve this tricky equation without relying on a migrant population.

Since the new law will increase the vulnerability of Nicaraguan migrants, their super-exploitation by the companies that employ them, and the abuse and corruption of immigration authorities, it is likely to reduce Nicaraguan migration to Costa Rica even further. Some have tried to make Nicaraguan migrants into scapegoats for many of the country’s problems and frustrations, but the reality is just the opposite: a drop in Nicaraguan migration will have a negative effect on Costa Rica’s social, economic and cultural development. What would Costa Rican society be like without the Nicaraguan migrant population? Perhaps we’ll have to learn the answer to this the hard way in order to understand the strength of the transnational ties that unite these two neighboring countries.

Alberto Cortés Ramos is an Associate professor of Political Science at the University of Costa Rica.

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