Libro I Título I. Derecho a migrar y los derechos de las personas migrantes

The State of Guatemala recognizes the right of every person to emigrate or immigrate, therefore the migrant may enter, remain, transit, leave and return to the national territory in accordance with national legislation.

The State guarantees to every person who is in the national territory, in full equality of conditions, access to the public services of security, health, education, work, housing and all those that are necessary for the development of their lives, in accordance with the provisions of the Political Constitution of the Republic, this Code and other applicable norms.

Foreigners may access the State offices to exercise their actions and assert their rights in accordance with the law. No public official may deny them assistance and attention on the grounds of not being Guatemalan.

The right of foreign persons to obtain Guatemalan nationality is recognized. For this purpose, the Nationality Law in force shall be observed.

The right of foreign persons to establish themselves in the country with their families, or with the intention of forming or reunifying it within the national territory, is recognized, in accordance with the provisions of the Political Constitution of the Republic, this Code and other applicable norms.

Any foreign person, except for the limitations established in the Political Constitution of the Republic and other laws, has the right to acquire properties in the national territory, as well as to invest in lawful companies, businesses or entities, in accordance with national legislation.

Every foreign person has the right to work as established by this Code, the national legislation in force and international law.

Every foreign person has the right to education within the national education system and the higher education system, in accordance with the provisions of this Code and the specific legislative provisions on education.

The rights and guarantees granted by the laws of the country and by the international conventions and treaties ratified by Guatemala, even if not expressly stated in this Code, shall be considered incorporated.

Migrant persons shall be treated equally and shall not be discriminated against on grounds of sex, sexual orientation, race, color, language, religion or belief, political or other opinion, ethnic or social origin, nationality, age, economic status, property, marital status, birth or any personal characteristic.

The State of Guatemala, without any discrimination, has the obligation to protect personal integrity, life and liberty of every national and foreign person who is in the national territory.

State institutions shall not require identification documents or any other requirement in order to provide the protection required by a foreign person. In all cases the necessary and available means shall be used to give such person immediate attention.

Persons have the right to freely decide where to settle within the national territory.

Migrant boys, girls and adolescents of other nationalities who are unaccompanied or separated from their families, pregnant girls and adolescents or those with children, married couples of minors with or without children who are in the national territory have the right to be attended to in specialized and differentiated outpatient programs or sheltered in special houses that are provided or authorized by the State for that purpose, in accordance with the specific principles defined in this Code.

The competent authorities must provide a differentiated protection response towards refugee boys and girls, especially those unaccompanied or who have been separated from their parents or guardians, for the purpose of adequately addressing their specific protection and assistance needs. In no case shall entry at the border be denied to unaccompanied boys, girls or adolescents or those separated from their family.

Boys, girls or adolescents may not be deported unless it is in their best interests.

The specific measures and procedures shall be carried out in accordance with this Code and its regulation.

Unaccompanied boys, girls or adolescents or those separated from their family shall be understood to be those who are not under the care and protection of their father, mother or of an adult who according to law or custom is their habitual caregiver, even if they are being accompanied by other persons.

The State guarantees the dignity and rights of migrant persons in national territory, ensuring that they are not subjected to any form of violence, nor to torture, cruel, inhuman or degrading treatment.

Migrant persons who report being victims of violence, sexual or labor violence, torture, cruel, inhuman or degrading treatment, by one or more persons, whether for profit or not, shall be immediately attended to in accordance with measures that safeguard their integrity, health and life.

The migrant woman with or without an identification document to be in the country has the right, in full equality with Guatemalans, to access public sexual and reproductive health services, which include gynecological services, maternity services for the time necessary to preserve her life and that of the unborn, as well as family planning services. Every migrant mother and her son or daughter have the right, in full equality with Guatemalans, to receive immunization vaccination against the principal infectious diseases occurring in the community, as well as the ordinary ones in accordance with the national health policy.

All migrant older adults in a situation of vulnerability who are in the national territory have the right to be attended to and sheltered, as well as to be provided with the special care necessary by reason of their age.

Migrant persons and their families have the right to remain together at all times. If for administrative reasons and in a strictly exceptional manner, they must be separated, this shall be only for the time that the procedure lasts, with the obligation to inform the family of the place where they will be located, the procedure to be carried out and the authority that requested it and for which they will be temporarily separated. In the case of boys, girls and adolescents, they may be separated from their family, also in a strictly exceptional manner and exclusively on grounds of their best interests.

Family members have the right to file habeas corpus (exhibición personal) remedies before a competent authority, for which access shall always be facilitated to them.

The public official who fails to comply with the provisions of this article shall be sanctioned in accordance with the criminal legislation of the country.

It is the exclusive power of the Guatemalan Migration Institute to authorize entities that will provide shelter and temporary care to migrants, which entities shall comply with the regulatory provisions for their location and operation.

Guatemalans returned from other countries may request that the Guatemalan authority give them lodging for shelter and temporary care, which is intended to provide a place to spend the night for forty-eight hours and to return to their place of origin. The authorities shall ensure that the habitability conditions of the centers are dignified and appropriate.

Every foreign or returned Guatemalan person has the right to receive the necessary information about their situation, the proceedings that must be carried out and all information related to their status or person.

It is prohibited for the authorities to confiscate, retain, destroy, change, alter, conceal, or cause to be deemed lost the identity, travel or personal documents of migrant persons. Likewise, it is prohibited to alter or in any way incorporate false information in the personal identification or travel documents of foreign migrant persons or returned Guatemalans.

No migrant person who is in the national territory may be subjected to conditions of slavery or servitude, nor to forced labor.

Migrant persons in special shelter houses, shelter centers and temporary care centers authorized by the Guatemalan Migration Institute may request, in accordance with available possibilities, support in communication abroad for family contact and consular assistance.

In the case of unaccompanied and/or separated girls, boys and adolescents, communication shall be promoted as many times as necessary, attending to their best interests. Likewise, they may communicate at any time with their consular authorities. Cases of asylum seekers or of any other system of international protection are excepted.

Migrant persons have the right to request the Guatemalan authorities to be returned to their countries of origin or provenance. For such purpose, when migrant persons cannot bear the costs of their return, notice shall be given to the consular authorities of their country of origin, or to the country of origin or provenance, and the suitable mechanism for their return shall be established. The Guatemalan authorities shall verify actual embarkation to such countries.

The State of Guatemala guarantees to every migrant worker and their families the rights recognized in the Political Constitution of the Republic, national legislation and international law duly recognized in our country.

Any interpretation or scope of the legal, regulatory or contractual provisions regarding migrant workers, in the same manner as Guatemalans, shall be interpreted in the sense most favorable to the worker.

Stipulations implying waivers, diminution, distortion or limitation of the rights recognized in national, international legislation and in any provision of a public or private nature are null by operation of law and do not bind migrant working persons.

They are minimum social rights that underpin the specific labor legislation for migrant workers and the actions of the State administrative entities and of the tribunals:

a)Liberty in the choice of work and of satisfactory economic conditions that guarantee the worker and his or her family a dignified existence.

b)Equitable remuneration, not less than the minimum wage in force and in legal-tender currency; the worker may agree with the employer on remuneration in the legal currency in force of another country.

c)Non-attachability of the wage in the cases determined by the national labor law in force; likewise, personal work equipment or implements.

d)Respect for working hours, annual leave, leaves, compensation and other rights recognized in national labor legislation.

e)Payment of extraordinary benefits in accordance with the national legislation in force or as agreed with the employer.

f)The right of migrant women workers to special protection for their maternity condition.

g)The prohibition on employing boys, girls or adolescents in jobs, except as established as an exception under national and international law.

h)Granting of economic benefits for the family when death occurs in accordance with what is established for each case under the national legislation and the internal legislation of the entity where he or she performed his or her work.

Migrant workers and their beneficiary family members have the right to obtain the services and benefits of the Guatemalan Institute of Social Security. For that purpose, they must be registered and must contribute the quotas in the corresponding manner in accordance with the rules issued by the Institute.

The Guatemalan Institute of Social Security shall issue the administrative provisions for the register of migrant workers and their beneficiaries.

Migrant working persons who perform their work for the agencies of the State of Guatemala, including autonomous or decentralized ones, have the right to make contributions in accordance with the specific law on passive classes.

Migrant working persons who have fulfilled the legal requirements have the right to receive the corresponding pensions for their services and contributions.

For purposes of application of this Code, migrant worker means any foreign person who performs remunerated activities in national territory and is classified within the following categories:

a)Cross-border and itinerant workers: A cross-border worker is that person who resides in the territory of a neighboring State to which they return at the end of their daily workday, or at least once a week; likewise itinerant workers are those who perform the same activity and who transit between Guatemala and Belize, until the Territorial, Insular and Maritime Dispute is resolved by the International Court of Justice.

b)Seasonal workers: A person whose activities depend on the conditions of the season of the year, or by the nature of the work is performed only during a determined time of the year.

c)Consultant, advisor or specialized technical worker: A person who carries out their activities for a period of no more than three hundred sixty-five days and who is required by the contracting party specifically as a consultant, advisor or specialized technician and who does not require requesting permanent residence.

d)Self-employed worker: Any worker who carries out commercial and industrial activities on their own account or with their families and who is authorized to carry out remunerated activities within the national territory.

The Guatemalan Migration Institute may suggest the expansion of the categories and propose the regulation of the conditions when circumstances warrant it.

Blood relatives, within the degrees established by law, who depend on the migrant worker may establish themselves in the country for as long as the migrant worker's work activities last. Likewise, the spouse or the cohabiting partner of the migrant worker.

In all cases, the corresponding authorizations shall be issued and processed in accordance with this Code and national legislation.

Relatives or companions in the charge of the migrant worker may engage in work activities, thereby obtaining a migrant worker category, as well as education activities in the national education system and in the health system.

Under no circumstances may communication with the consular or diplomatic representatives of their countries be prohibited or denied to migrant workers and their families or companions. In cases of death, accident or any situation requiring communication with their country, immediate communication with the respective consul or diplomatic representative shall be facilitated.

Diplomatic representations with seats in Guatemala may promote among their fellow-national workers in the country the cultural and religious activities proper to their countries. This right must be exercised within the framework of respect for the laws of the country and for the cultures, languages, religions, beliefs and habits of the persons who inhabit the national territory.

Migrant workers and their families or companions, during their stay as workers, may enter and exit the country as many times as necessary in compliance with the norms established in this Code and its regulation.

Migrant workers or their families or companions who acquire assets or properties in the country shall be owners thereof even when they no longer carry out remunerated activities in the country and may dispose of them in accordance with their interests and within the framework of the national legislation in force.

When a migrant worker is detained or convicted for the commission of a crime or minor offense, they do not lose rights over their legally and legitimately acquired assets or properties; unless under our legislation they are subject to extinction of domain or confiscation.

Migrant workers and their families, when they have completed their period of stay in Guatemala, have the right to take with them the titles or property lawfully owned and legitimately acquired by them and to make money transfers in accordance with authorized banking procedures.

Likewise, they may bring their property into the country and transfer money from accounts in other countries to accounts duly accredited in the Guatemalan banking system.

The limitations to this right relate to health, the existence of judicial proceedings that prevent the exit of such property or moneys, or extinction-of-domain proceedings.

No public official may encumber or limit this right outside what has previously been established by legislative or administrative provisions or by judicial order.

Diplomatic missions accredited in Guatemala, whose countries recognize the right to vote of their nationals outside their territory, may request, through the government authorities, or through the Ministry of Foreign Affairs, collaboration from the Guatemalan Migration Institute and the necessary support to obtain the list of resident persons of their nationality.

Migrant workers or their family members or companions may be members of cooperatives. To that end, the cooperatives shall have their own rules to establish their forms and levels of participation.

Migrant workers are subject to the payment of taxes, fees, municipal levies and fines established generally and specifically in national legislation. Likewise, they shall comply with the administrative requirements that the Superintendency of Tax Administration establishes for each case.

Exonerations, exemptions or any other tax benefit shall be in accordance with the legislative or administrative provisions that may be issued for each case and at specific times.

Employers of migrant workers with valid authorization in the country shall inform the Guatemalan Migration Institute in cases in which their foreign employees are dismissed or have resigned, the migrant worker being able to demand payment of their benefits in accordance with Guatemalan labor law.

All migrant workers have the right to access the administrative authorities and the labor tribunals of the country and to bring actions in accordance with the national laws in force.

The rights of migrant persons who are victims of trafficking in persons, in addition to those regulated in Article 11 of the Law Against Sexual Violence, Exploitation and Trafficking in Persons, Decree Number 9-2009 of the Congress of the Republic, are the following:

a)To access available assistance resources. In the case of boys, girls and adolescents, it shall be guaranteed that the procedures recognize their special needs implied by the condition of being a subject in full development of personality.

b)Not to be subjected to confrontations.

c)That the applicable rights-protection measures do not entail deprivation of their liberty.

d)To provide testimony under special conditions of protection and care.

The rights set forth in this article are integral, non-waivable and indivisible.

The protection and shelter homes and the specialized programs for comprehensive care for adult migrant persons who are victims of sexual violence, exploitation and trafficking in persons are under the charge of the Secretariat for Sexual Violence, Exploitation and Trafficking, and the assistance services are under the charge of the Ministry of Public Health and Social Assistance, the Ministry of Labor and Social Welfare, as well as the Ministry of Social Development, in accordance with their competencies. They shall provide care in coordination with the Subdirectorate for Attention and Protection of the Fundamental Rights of Migrants and the other State entities, in accordance with current policies and legislation.

Girls, boys and adolescents who are victims of sexual violence, exploitation and trafficking in persons, which includes Guatemalan children or migrants of other nationalities, shall enjoy specialized and differentiated care through the programs, which shall be under the charge of the Secretariat of Social Welfare of the Presidency, as the governing entity for the essential services of special protection for children and adolescents whose rights are threatened or violated. It shall coordinate its actions through the Attention and Protection Council of which it forms part, as well as with other State institutions, and shall provide its services through its departmental offices.

The State institutions identified in this article must establish standards for the different care services and programs in protection and shelter homes.

For effective migration control, in accordance with the provisions of Article 14 of the Law Against Sexual Violence, Exploitation and Trafficking in Persons, Decree Number 9-2009 of the Congress of the Republic, the Guatemalan Migration Institute, the Ministry of the Interior and the Public Prosecutor's Office shall issue joint protocols and provisions on the action to be taken in each circumstance.

All provisions issued must be in accordance with respect for human rights. Likewise, arrangements shall be made to inform the victim about the protection and care system that can be provided to them, and if the victim is a boy, girl or adolescent, the Office of the Attorney General of the Nation shall be notified for the initiation of the protection proceedings.

Migrant victims of trafficking in persons shall be repatriated as established in Articles 16, 17 and 18 of the Law Against Sexual Violence, Exploitation and Trafficking in Persons, Decree Number 9-2009 of the Congress of the Republic.

Within the prior procedures, the right of victims not to be repatriated due to violence or fear of violence shall be considered, without prejudice to requests for asylum, refuge, stay for humanitarian reasons or any of those regulated in this Code or in accordance with international practice.

The non-repatriation of the person shall be considered where their consanguineous family within the degrees established by law is located in the national territory or due to well-founded fears that return to their country of origin places their life or personal integrity at serious risk.

The inter-institutional protocols provided for in subparagraph (b) of Article 19 of the Law Against Sexual Violence, Exploitation and Trafficking in Persons, Decree Number 9-2009 of the Congress of the Republic, in addition to the institutions referred to in the same text of the cited article, shall include the Guatemalan Institute of Migration.

Foreign persons may request refuge from the State of Guatemala at the time of their entry into the country at an official migration post.

The procedure for the recognition of refugee status shall be established in the respective regulation, in accordance with the legislation in force and the international instruments to which Guatemala is a party.

Guatemala may grant asylum, its granting being discretionary in nature on the part of the State of Guatemala, in accordance with the Political Constitution of the Republic of Guatemala.

Recognition of refugee status entails for the refugee person the exercise of the rights and the fulfillment of the duties provided for in the Political Constitution of the Republic, international instruments and other laws of the country, remaining subject to the jurisdiction and competence of the Guatemalan State.

The procedure for requesting, obtaining or denying refugee status shall be established in the regulation in accordance with the legislation in force and international standards.

If recognition of refugee or asylee status is denied, the person shall not be returned to the country where there is well-founded reason to place in grave danger his or her life, his or her physical integrity and his or her liberty. The State of Guatemala, prior to the return, shall guarantee that the Office of the United Nations High Commissioner for Refugees (UNHCR) has been made aware of the situation of the person.

Refugee status may not be granted to a person:

a)Who has committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments drawn up to adopt provisions with respect to such crimes;

b)Who has committed a particularly serious crime outside the country of refuge, before being admitted therein as a refugee or when the application has been filed to evade the justice of another country;

c)Who is guilty of acts contrary to the purposes and principles of the United Nations, as embodied in international treaties and agreements.

Temporary resident status for boys, girls, adolescents and adults recognized with refugee or political asylum status.

Boys, girls, adolescent persons, men and women recognized with refugee status, or political asylum under the figure of territorial asylum, shall be immediately placed under temporary resident status and shall receive appropriate documentation, a measure which before the issuance of a final decision shall guarantee access to basic rights of such persons such as freedom of movement, access to health services, education, information and legal guidance, access to justice, among other fundamental rights established in national legislation and international law.

When the grounds for requesting refuge or asylum are serious suffering from sexual violence or the threat of suffering such violence, migrants who are boys, girls, adolescents and adults shall be protected and particular protection measures appropriate to their situation shall be adopted, providing comprehensive care, especially in health.

The lack of identity and travel documents, or failure to have complied with the administrative requirements for entry, stay or transit within the country does not justify the imposition of a criminal sanction, but the person is obligated to pay the administrative expenses incurred in accordance with what is established in the regulation and they shall be returned to the country of provenance.

The applicant for recognition of refugee status, the applicant for political asylum and the political asylee under the figure of territorial asylum who has entered the territory in a regular manner, shall enjoy all the rights and obligations set forth in Guatemalan legislation, in particular in the Political Constitution of the Republic and in this Code, as well as those recognized and guaranteed in the international treaties and agreements ratified by the State of Guatemala.

The presence of persons applying for recognition of refugee status, refugees, political asylum applicants or political asylees in the territory of the Republic, as well as the respective proceedings and applications for recognition of their condition or status, shall respect the principle of confidentiality in order to protect their life, integrity and liberty.

Persons requesting recognition of refugee status or political asylum under the figure of territorial asylum, while their application is pending resolution, have the right to hold a special personal identity document in order to be able to access education and health services; likewise, the document shall be considered valid for obtaining remunerated work in accordance with the legislation in force.

In the same manner, refugees and persons granted political asylum shall hold a special personal identity document.

The State of Guatemala may provide to legally established national and international entities that provide humanitarian assistance all facilities so that they may carry out their activities within the territory of the country. Migrants have the right to request assistance from such entities for humanitarian reasons.

The State of Guatemala, through its migration authorities, shall register humanitarian assistance entities for migrant persons.

Mandated international organizations may carry out protection and assistance activities in favor of migrant persons.