Chile like many countries, more with our demographic complexities, currently faces the challenge of increasing migration, which entails the species, can meet the various types of discrimination of the foreign workers at work, and thus the stress of Social security system.

Such discrimination, countries must address not only social but also from the legislative field, where the authorities seek to ensure equity in employment, and access to Social security.

The discrimination in employment, can occur, from the denial of employment based on their nationality, unequal treatment in wages or working conditions, as in the exclusion in professional development opportunities.

The legislation in Chile, since the last change to the law, promoted by the Law No. 21 . 325 of 2021 , aims to regulate the entry, stay, residence and exit of foreigners into the country, and the exercise of rights and duties, without prejudice to those contained in other legislation. But, however, this legislative effort can be notes of the analysis of the rule itself, various legal impediments or perverse incentives that could promote behaviours that kind would hinder the access of the alien to a source of employment.

Although discrimination to foreign workers can occur at a number of scenarios, this work aims to provide an analysis of the main and current legislation, by focusing and the law, 21 . 325 and, as the same, unconscious form hinders access from abroad to work in Chile.

Keywords: Migration, labour, discrimination.

However, that Chile has not ratified any of the ILO Conventions on migration, such as ilo conventions nos. 97 of 1949 ¹ , and no. 143 of 1975 ² also, the chilean state intended to regulate and to regulate this particular situation, which is currently one of the main factors of concern in our country, moreover, when Chile has ratified the Universal declaration of human rights, bound not only to secure a chilean citizen, but also respect abroad for various circumstances must leave their place of origin, desarraigándose of their land, in search of better living conditions, not only for him, but also for his family.

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In that vein, the act promotes:

1. Everyone who is legally in the national territory has the right to freedom of movement, residence, and to leave the country.
2. A rational and fair procedure for approval or rejection of the request of entry or residence permit to the country under admission criteria non-discriminatory manner.
4. With regard to the best interests of children and adolescent, the state shall take all administrative, legislative and judicial measures to ensure the full exercise and enjoyment of the rights of minors, enshrined in the constitution, laws and treaties ratified by Chile and currently in force.
6. Integration and inclusion ⁴ .
7. Safe, orderly migration and regularly.
8. Is assessed by the state of Chile the contribution of migration for development of society.
9. Irregular migration is not constitute a criminal offence.
10. Complementary protection to asylum as refugees, whose application has been refused, resulting, in which cannot be expelled or returned to the country where his right to life, physical integrity or liberty of person at risk of being violated by aspects of discrimination, ⁵ .
11. Interpretation of laws relating to migration, according to the constitution and international human rights standards.
12. Principle pro homine ⁶ .

However, the above, in reality a series of “ policy inconsistencies ”, which in practice do not allow a full implementation of the objectives outlined above, or that the same, within the domestic sphere of our country, are hindering the free access to a job, or the movement of its own assets.

In the last delivery estimate's migrant Population 2022 by the national migration Service of Chile, together with the national institute of statistics under the same country, it is estimated that for the thirty-one of december two thousand and twenty-two, were in our country 1 . 625 . 074 foreigners, which clearly will continue to grow ⁷ .

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Law No. 21 . 325 of 2021 provides the “ rights and obligations ” for foreigners, but by observing the rule those rights are established in generic form, so, provide for equality in the exercise of rights, without prejudice to the requirements and penalties established by law to specific cases.

Furthermore, the state shall promote the adequate protection against discrimination and compliance with the obligations enshrined in the constitution and other international bodies that Chile committed to safeguarding ⁹ .

So, within this context, foreigners shall enjoy equal rights in the field of labour as chileans, without prejudice to the requirements and penalties established by law to specific cases. As such, any employer must fulfil its legal obligations in the area of employment, without prejudice to the penalties that the labour inspectorate can impose ¹⁰ .

In terms of access to Social security, aliens may to access, on an equal footing with nationals, provided they comply with the requirements established by law regulating these areas, and to those allowances and benefits of non-contributory social security wholly funded fiscal resources, involving direct monetary transfers, for which no direct or indirect access requirements involving a certain minimum stay in the country, is only entitled to them those residents, whether in its ownership or dependants, who have remained in Chile, as such, for a period of at least 24 months, based on humanitarian grounds or health warnings issued by the authority, may be omitted the indicated deadline previously ¹¹ .

As we saw the current chilean legislation does not, however, classified into the ilo conventions, aim to provide a regulatory framework to the current migration situation in recent years, there has been, and noting that the facts has been in constant growth.

Even so, we note that, of the regulation itself, is a real obstacle to employment of foreigners in the country.

Firstly, the law itself, since the same in its simple reading, it is not easy to understand for foreigners, the more so with repeated references to other legislation of the same, and other legislation set out in generic form.

Moreover, in order to strengthen the analysis, in the law itself in its article 40 regulates the “ payment of fees. The residence permits and its extensions, permits to carry out remunerated activity for holders of temporary stay and any other type of permit migratorio founded the latter case on the principle of international reciprocity, will be subject to payment of rights, except in cases expressly excepted. Its amount is determined by supreme decree issued through the ministry of Interior and public security, which must be signed by the ministers of finance and foreign affairs. This decree should consider the principle of international reciprocity.

In exceptional cases and at his request, the national Director of the service, by reasoned decision, may reduce the amount of the rights to pay. ”

Within the various categories of migrants, from the Temporary Stay ” ” ¹² according to Exempt Resolution No. 129194 of 3 / 07 / 2020 payment of fees, as indicated by the legal norm is determined on the basis of reciprocity prinicpio, for example an alien of ecuadorian nationality must pay US 450 , and if you want to engage in a remunerated activity, be it by the equivalent 150 per cent of the value above.

In the case of foreigners who succeed in obtaining the Temporary Stay, which empowers permanencer in Chile for two years, renewable for the same time, do not see an increase in the payment of these rights, as determined by the tariff Exempt Resolution provides a table of a number of values that is determined based on the principle of international reciprocity. And those that they are Definitive residence, the right only has a fixed fee of $ 118 . 604 .- pesos (US 128 approx.)

With the above, we have a first challenge, the high tariff, thinking that generally migration that our country is undergoing, and that is the general rule, anywhere in the world, are generally own of foreigners without increased resources, in search of new options not only for work, but social security, health, education and economic situation.

Secondly, and in relation to the above, as is the development of income-generating activities, are fines associated with the realization of such activities without proper authorization.

¹³ The above, except as provided for in the number 5 article 127 ¹⁴ .

Since a first look, this fine to develop income-generating activities without authorization is excessive; therefore, the legislator in the article 117 the sanction in case that “ efectuaren against their employer, instances of non-compliance of migration law, labour or any other nature before the service, the directorate of labour, courts of justice or any other State administrative body.

The problem is that, in this rule contained in article above, as a “ serious ” Breach of migration for employment of non-citizens without authorization. Thus, the standard punishes employers natural or legal person employing aliens who are not in the possession of a permit of residence or establishment would like to work, and such fines for every foreign worker hired without being permitted is presented in accordance with provisions of article 505 bis of the labour code ¹⁵ in:

1. Micro enterprise, a fine of twenty UTM
2. Small businesses, a fine of ten to forty UTM
3. Medium-sized enterprises, a fine of 30 to 100 UTM
4. Large companies, a fine of sixty two hundred UTM.

In that vein, the Legislator in the Act promotes employers from hiring foreign workers, but knowing that, if such workers do not have proper authorizations, the worker with a simple complaint is exempt from punishment, but who receives the full weight of the same is the employer, and depending of cataloging can range from $ 64 . 343 .- pesos (US 69 approx.) to $ 12 . 868 . 600 .- pesos (US 13 . 882 approx.). It is clear that this provision will discourage the hiring of foreign workers, not with the purpose of concealing an illegality, as the employer who wishes to act so infraccional will assume the risk of eventual monitoring, and would continue its infraccional act.

It is not possible to understand, which expressed aims to safeguard an illegal recruitment, which is pointing out, is that the procedure for regularizing workers discourage the employer couple their recruitment, and this happens, because until we have proper authorization cannot the foreign worker to provide services to their employer, therefore, is instructed by the rules of procedure of the law in analysis, to incorporate in the respective contract clause in that vein, but in practice, for the time delay in obtaining the authorization, and consequently, the worker should not work but the facts if, and the administrative delay in granting permission for an employer to exposes serious fines, which as indicated by the law “ is for each foreign worker hired without authorization ”.

It would have been more helpful, promote the aforementioned law or in another body of law and the labour code, a clear procedure and aim to hire foreigners, where first, the employer was to submit the relevant contract to the national migration Service, and to the authorization granted by the mere fact of the submission, failing which the relevant act provides that it is understood licensed to carry out remunerated by the mere fact of their submission, through its respective digitization and affidavit, into a platform ready for that purpose, next to the payment of the respective tariffs (certain under a social Perspective, and not of reciprocity), to be deducted in contributions, according to the current regulations in force in the labour code.

This suggestion, within a framework to promote the legal staff, where the positive synergies for any state would be quite useful, as a lifted the state register of foreign workers in a regular situation and their dependants, which contribute to the Social security system, with their respective contributions.

In a state, which is respect and safeguarding of human rights, not only of nationals, but also of aliens, a state's duty to promote the integration of foreigners into society of any country, but mainly in the strengthening of their independence from abroad. That best state policy to encourage the creation of employment for all, if the State draws via Taxes which allow social policy development, whose positive synergies benefit at all a country, and whether the collective, is comprised of aliens, not only benefit from such social policies, but also making their development.

It is quite obvious, that migration correctly taken with principles and objectives, which did not promote discriminatory behaviour, it can only produce benefits for the alien, but also for the entire community.