In countries where migratory flows have been permanent, pro bono work has frequently assisted migrants, asylum seekers and refugees. For example, in the United States, due to the high cross-border human mobility, especially in the Mexican border, assisting migrants has been a common pattern in the pro bono projects. Many of these programs have enforced the access to justice and rights for this population. However, other countries have much less experience in this matter and suddenly, must face extreme changes in their migratory dynamics. Therefore, countries that once had significant levels of out-migration, now confront massive immigration, and have become out, in and transit migration countries. This is the Colombian case.
According to the Inter-Agency Coordination Platform for Refugees and Migrants from Venezuela, by January 2022, out of 6.04 million people that have fled Venezuela (a country that by 2015 had 30 million people according to the World Bank), approximately 2 million have entered Colombia (without taking into consideration those who are just transiting the country via another destination). This a massive change that creates a new context for the Colombian migration history, as the country used to be an emigrant country. Thus, due to political violence, recurring economic crisis, excess labor, and poor infrastructure, Colombians used to flee the country in the search for better opportunities.
Immigration is not new in Colombia and not all the recent migration is exclusively from Venezuela, since people from Cuba, Haiti, Africa, and South Asia, among other regions, also arrive to Colombia in a very vulnerable condition too. However, the Venezuelan situation and the massive migration out of this context, puts into question the institutional capacity of the Colombian State entities as well as NGOs and private sector entities that work for the common and social interest, including those interested in breaking the boundaries to access justice.
Why is pro bono work so important in this new context? I can find three main but not exclusive reasons: (i) migrants, asylum seekers and refugees normally need free legal services to accomplish multiple, but sometimes simple, legal procedures in order to access to their rights. Our current legislation doesn’t match the actual context or the transition to a new legislation and/or it is not fast enough for a changing context; (ii) pro bono lawyers, firms with pro bono practices and legal aid clinics are the ones that normally participate in cases that are under review of high courts and that accomplish unprecedent rulings that extent the scope of rights’ protection for this population, and finally, (iii) beyond our condition as lawyers, in a context of high and unjustified xenophobia, finding a lawyer or just a person that is willing to work towards the inclusion of this population, is a tool not only to beat the boundaries to access justice but that routes our actions towards social inclusion, as this is not a temporary situation.
Regarding the first point, understanding the Venezuelan actual context is fundamental. According to the 2021 National Survey of Living Conditions (ENCOVI in its acronym in Spanish) done by the Andrés Bello Catholic University in Venezuela, nearly 95% of Venezuelans are in poverty and 76.6% are living in extreme poverty. This means that when migrants, asylum seekers or refugees coming from Venezuela arrive to Colombia, they do not have enough economic resources to afford a lawyer but do need legal assistance.
This assistance is needed because our current regulation regarding this matter doesn’t match the actual migratory context and because migrants, refugees and asylum seekers are unfamiliar with the Colombian legislation (or their destination country legislation), so the path to access rights is not clear and having a pro bono lawyer can help them to do it efficiently. Normally, this population needs to institute individual constitutional actions for right protection (Acción de Tutela), and even though that public action doesn’t require a lawyer, the ignorance towards the legal framework makes it difficult to use them correctly or acquire a favorable ruling.
Although many changes have been made in recent years to our regulation regarding this matter, this transition to a new normativity has not only been slow but sometimes ignores the legal and non-legal boundaries most migrants face. For example, last year the Comprehensive Immigration Policy (Act 2136/2021) was issued. However, as of today, many of the aspects have not been regulated. Thus, simple questions on which normativity to use and how to access rights on this new normativity are not clear.
Secondly, pro bono work or free legal services are usually provided by clearing houses, law firms with pro bono programs or legal aid clinics, which normally are the ones that promote or support strategic litigation to promote rulings by high courts and therefore, a wider access to rights and justices for migrants, refugees, and asylum seekers. A clear example is the Legal Clinic for Migrants at University of the Andes in Bogotá, Colombia which has participated in over 10 rulings from the Colombian Constitutional Court regarding migrants, refugees, and asylum seekers rights. Without these institutions that do pro bono work and thus, promote access to rights and justice for vulnerable population, the scope of rights for this population could be even more limited than what it still is today.
Finally, pro bono work is not only a tool to beat the barriers to access justice but also a way to tear down xenophobia and promote social inclusion of the migrant, asylum seekers and refugee population in Colombia. According to the Xenophobia Barometer, xenophobia is an upward trend in Colombia, especially since Venezuelan migrants, asylum seekers and refugees have been faulty related to crime and insecurity, which has created an attitude of rejection towards them, making their social inclusion even more difficult. As the Inter-American commission on Human Rights declared on the OEA/SER.L/V/II, “it is essential to any social inclusiveness process to ensure “full independence of the branches of government, particularly the guarantee of an impartial judiciary, access to justice, the enforceability of rights recognized under the Constitution and international law, strict compliance with due process without discrimination, policies for coordination between the community and formal justice systems, and, most especially, fighting the severe problem of impunity for those responsible for human rights violations”. By simply assisting migrants, asylum seekers and refugees with pro bono work, lawyers can contribute to social inclusion and make the process less traumatic for this population.
This last point is an invitation to understand our roll as pro bono lawyers and how a simple action of taking a pro bono case to assist a migrant, asylum seeker or refugee, is the opportunity to promote social inclusion and change a life by bringing down the boundaries to access justice. In this current context of massive migration fluxes and thousands of people needing free legal assistance, lawyers willing to do pro bono work are not only needed, but fundamental to truly assist this population.