by Sara Mariella Lambertini Martinez
The 2008 Ecuadorian Constitution, drafted during a period of regional idealism, was a pioneering text that enshrined in Article 416 the principle of “universal citizenship.” By advocating for the progressive elimination of foreign status and explicitly prohibiting the criminalization of migration, this framework positioned Ecuador as a sanctuary state, particularly for those fleeing the internal armed conflict in Colombia and the humanitarian crisis in Venezuela. For more than a decade, Ecuador promoted the concept of human mobility from a rights-based approach, transforming itself into a jurisdiction where the human right to migrate was not mere rhetoric, but a constitutional mandate.
However, 2025 marked the definitive end of this era. The rapid deterioration of the country’s security situation, evident by President Daniel Noboa’s declaration of an “internal armed conflict” against organized crime in January 2024, has precipitated a drastic legislative shift. The State’s response has been to reframe human mobility not from a human rights perspective, but exclusively from the prism of national security. This change culminated in reforms made to the Organic Law on Human Mobility (LOMH), published in October 2025.
To consider these reforms as mere administrative adjustments would be a mistake, as they represent a fundamental dismantling of the protection framework established in the LOMH from 2017. By introducing accelerated deportations, creating a priori obstacles to determining refugee status based on opaque security profiles, and imposing insurmountable burdens of proof for regularization, Ecuador has consolidated a securitized migration regime. In this sense, the reform signals a transition from the universal citizen—a subject endowed with rights regardless of their status—to a figure considered primarily as a risk that must be managed and, if necessary, removed immediately.
In this regard, a legal analysis is provided below of three specific mechanisms within the 2025 reform that challenge Ecuador’s obligations under the 1951 Refugee Convention and the 1984 Cartagena Declaration.
1. The “Security Threat” Declaration: Weaponizing the Admissibility Phase
The most critical and alarming change in the October 2025 reform is the tightening of the grounds for inadmissibility of asylum applications. Generally, the admissibility phase in international refugee law is conceived as a preliminary examination to dismiss unfounded applications or those for which the State is not responsible. However, Ecuador has transformed this procedural step into a substantial barrier driven by security intelligence, effectively prejudging the merits of an application before the asylum seeker can even present their case.
The reform modifies Article 103 of the Human Mobility Law from 2017 to broaden the grounds for deeming an asylum application “inadmissible.” Previously, inadmissibility was primarily reserved for “manifestly unfounded” applications—those that clearly lacked any connection to the grounds of the 1951 Convention—or fraudulent applications. However, the 2025 reform introduces the dangerous category of “illegitimate applications.” According to the new Article 103, an application is considered illegitimate in limine if the applicant is deemed a threat or risk to public safety and the structure of the State, in accordance with the official pronouncement issued by the competent security authority.
This provision is legally precarious for several reasons. First, it subordinates eligibility for refugee status—a fundamental human right—to the assessment of a security apparatus composed of the police and intelligence services. In an effective asylum system, determining whether a person poses a danger to the community is part of the substantive analysis, generally addressed in the “exclusion clauses” of Articles 1F and 33(2) of the 1951 Convention. By shifting this verification to the admissibility phase, Ecuador allows the police and intelligence services to completely block access to the asylum procedure. If the Ministry of the Interior issues a “security alert” against an applicant, the competent asylum authority loses its jurisdiction to examine the merits of the persecution claim and must declare the application inadmissible.
Second, this mechanism circumvents the high evidentiary standards of Article 1F of the 1951 Convention. The Convention’s exclusion clauses are comprehensive and require serious reasons for determining that a war crime or a serious non-political crime has been committed. This is a high standard of proof that requires an individualized assessment. The new Ecuadorian framework replaces this with a discretionary administrative risk assessment. This creates a system in which a simple police record, a flag in an intelligence database, or a profile match—none of which constitute a criminal conviction—could trigger the automatic denial of an individual’s access to the asylum process. The vagueness of this “official assessment” prevails, as the law provides no further information about this assessment or the possibilities for challenging it.
Finally, the reform of Article 103 introduces the concept of “abusive claims,” defined as those submitted to evade controls or compliance with immigration requirements. This establishes a dangerous circularity that effectively criminalizes the very nature of flight, as refugees often enter a country in an irregular manner or remain after their visa expires because of their flight. Using their irregular status as evidence that their asylum claim is “abusive” ignores the reality of forced displacement. Instead, this provision empowers administrative officials to judge the applicant’s intent, rather than the risk they face. Together, the security filter and the “abuse of rights” doctrine act as a barrier to filtering mixed migration flows, treating potential refugees as economic migrants attempting to “cheat the system” rather than as rights holders entitled to a status-determination assessment.
2. Deportation Without Conviction: The Erosion of Due Process
Perhaps the most draconian innovation of the 2025 reform is the introduction of a parallel deportation regime. This regime operates outside the standard guarantees of criminal law, using migration law as a tool for summary punishment. The introduction of Article 141.B, titled “Deportation due to grave internal commotion originating in the security sphere,” represents a paradigm shift in how the state handles non-nationals involved in the justice system.
Designed specifically for the context of the internal conflict, Article 141.B authorizes the accelerated deportations of foreigners who are deprived of liberty, even without a final sentence. The text explicitly states that while deportation is applicable to any crime punishable by a custodial sentence, a final conviction judgment is not required. Instead, it is considered sufficient if “pretrial detention has been ordered.” This represents a frontal assault on the presumption of innocence, guaranteed under Article 76 of the Ecuadorian Constitution. In Ecuador, as in most rule-of-law states, pretrial detention is a precautionary measure intended to ensure the accused appears at trial; it is not a finding of guilt. By permitting the deportation of individuals who have merely been accused and placed in preventive detention, the State effectively treats the accusation as a finding of guilt warranting expulsion.
For a refugee or asylum seeker, this could be catastrophic. In the current state of emergency context, security forces often conduct mass sweeps. If an asylum seeker is arrested during a security operation—a common occurrence in the current climate—and placed in preventive detention, they can be summarily deported before their criminal trial concludes and their asylum claim is adjudicated. This constitutes a clear violation of the principle of non-refoulement, as the individual may be returned to a country where they face persecution without ever having their protection needs assessed or their criminal guilt proven.
The procedure for this type of deportation relies on a timeline so compressed that it renders due process a mere formality. The new Article 141.A establishes that once a competent authority deems a foreigner a “threat,” the process is reduced to a single, simplified hearing to be convened and concluded within twenty-four hours. While the text formally guarantees the right to a defense, this promise becomes procedural fiction in practice. Within this window, a detained individual—often facing significant language barriers—is expected to secure legal counsel and prepare a complex defense. Consequently, the right to legal assistance is effectively circumvented, leaving the individual defenseless against an expedited deportation.
Moreover, the penalty for deportation under Article 141.B is a forty-year prohibition on returning to Ecuadorian territory. This sanction is so disproportionate that it effectively amounts to a lifetime ban. It severs family ties and permanent residency rights without a final judicial verdict. Furthermore, the law stipulates that if the deported person returns before this period elapses, they are considered an “immediate capture target” and will be imprisoned to serve the sentence for the crime of failure to comply with legitimate decisions of a competent authority. This militaristic language further dehumanizes the migrants, framing them as an enemy combatant rather than a subject of law.
Additionally, the amendments have weakened the guarantee of non-refoulement in the revised Article 143.A. The legislature has eliminated the clause that extended protection to people in need of it “even if they have not accessed the formal procedure.” This change effectively transforms the right to non-refoulement from a fundamental human right into a conditional bureaucratic privilege. It exposes unregistered asylum seekers to summary deportation, even though, according to international standards, protection against refoulement applies from the moment a person meets the definition of a refugee, not just from the moment the State recognizes them as such.
3. The Extraterritorial Wall: Transit Visas as Non-Entrée Policies
The 2025 reforms have explicitly repurposed the transit visa into an instrument of migration containment. This measure creates an extraterritorial obstacle aimed specifically at nationals from the Global South, systematically blocking potential asylum seekers from reaching Ecuadorian territory and, consequently, denying them the opportunity to file for protection.
The amendment to Article 66 of the LOMH alters the legal nature of transit, transforming what was previously a passive act of passage into a regulated privilege requiring prior state authorization. Effective as of September 1, 2025, the State operationalized this barrier by mandating a temporary transient visitor visa for citizens of forty-five distinct jurisdictions. This administrative hurdle exerts a disproportionate impact on Venezuelan nationals, a demographic that has represented the largest cohort of asylum seekers in Ecuador every year since 2018. Furthermore, the inclusion of Cuba and multiple African and Asian nations in this restrictive list suggests a deliberate strategy to curb mixed migration flows from the Global South before they can reach Ecuadorian territory. The requirement even extends to travelers who remain in international waiting areas (airport transit zones) for connecting flights and who technically never cross national immigration control.
This administrative barrier is remarkable. The visa must be obtained in person at Ecuadorian consulates abroad and costs US$80, a prohibitive sum for many internally displaced persons. By requiring this visa as a prerequisite for boarding a flight to Ecuador, the State effectively outsources border control to commercial airline personnel. These private actors, under threat of severe fines for transporting undocumented passengers, deny boarding at the point of origin. Consequently, the right to seek asylum becomes meaningless for those attempting to arrive by air, creating a discriminatory filter where access to protection depends not on the risk of persecution, but on possessing a specific passport and having sufficient financial resources.
Even more serious is the bureaucratic dilemma created by the reform regarding humanitarian visas. The new wording of Article 66.5 defines a humanitarian visa as an authorization granted to individuals “until their application is resolved, or to individuals under protection… who have been declared to be in a vulnerable situation.” The danger here lies in the subtlety of the text, because it implies that the applicant must first be “declared” vulnerable to access the entry visa. However, such a declaration generally requires that the person already be in Ecuadorian territory or at the border. By blocking physical arrival through the transit visa requirement, the State prevents the fulfillment of the necessary presence condition to activate the humanitarian protection that the law supposedly offers.
Finally, this containment architecture neutralizes the guarantees of Article 137 of the law itself, which states that inadmissibility procedures should not be applied to asylum seekers. This provision becomes irrelevant in practice because a refugee cannot invoke Article 137 before an immigration officer in Quito if they have been prevented from boarding their flight in Caracas or Havana. While land borders theoretically remain open to asylum applications, their increasing militarization and the imposition of new requirements act as powerful deterrents. Consequently, the transit visa must be understood not as a standard travel document, but as a strategic barrier to jurisdiction. Since physical entry into the territory is the necessary precondition for triggering state obligations, blocking access at the transit stage serves as a deliberate mechanism to insulate the asylum system from potential applicants.
4. Tensions with the Cartagena Declaration
The reforms fundamentally undermine the expanded refugee definition found in the 1984 Cartagena Declaration, which covers flight from “internal conflicts” and circumstances that have “seriously disturbed public order.” By reframing migration governance through a national security lens, Ecuador has created a hostile environment for the very population that Cartagena was designed to protect.
This is evident in the country’s treatment of Venezuelan nationals. Despite fitting the Cartagena profile, they are systematically blocked by the requirement for apostilled criminal records. This provision ignores the reality of forced displacement, where procuring official documents from the country of origin is often unfeasible. Furthermore, under the new “abuse of rights” doctrine, the inability to meet these formal requirements is weaponized to deny protection.
The implications of this shift are profound. By equating irregular entry with “illegitimacy” and security risk, Ecuador is dismantling the principle of non-criminalization of migration. The new legal architecture suggests that international protection is no longer viewed as a right derived from the risk of persecution, but as a reward for bureaucratic compliance. It establishes a dichotomy between the “good migrant” (documented and orderly) and the “bad migrant” (irregular and undocumented), effectively denying asylum to those who, by the very nature of their flight, cannot fit the mold of the former.
5. Rights on Paper, Walls in Practice
The October 2025 reforms to Ecuador’s LOMH constitute a critical warning about the instrumentalization of the state of exception and the security emergency to undermine fundamental rights. Under the guise of its internal conflict against organized crime, Ecuador has implemented a radical paradigm shift, dismantling the constitutional principle of universal citizenship established in 2008 in favor of a national security doctrine applied to migration. This shift materializes in the creation of a parallel deportation regime (Article 141.B) that deprives migrants of basic jurisdictional guarantees, and in the establishment of administrative “security alerts” (Article 103) as new grounds for exclusion from asylum. Added to this is the imposition of impossible-to-meet documentary requirements, such as transit visas, which have erected a regulatory wall that, although invisible, is as effective as physical barriers in rendering the right to seek international protection meaningless.
While legislative reforms in Ecuador—particularly the amendment to Article 138—represent formal progress by expressly prohibiting collective expulsions and requiring the separation of investigative and decision-making functions, the implementation of these guarantees remains questionable. Although this legal framework seeks to align with the standards of the Inter-American System (see: Vélez Loor v. Panama, Nadege Dorzema et al. v. Dominican Republic, andExpelled Dominicans and Haitians v. Dominican Republic) and with the binding precedent of the Constitutional Court of Ecuador (Judgment No. 639-19-JP/20), a latent risk persists that due process will become illusory in practice. The imposition of twenty-four–hour summary proceedings fundamentally undermines the right to adequate time and means for the preparation of an effective defense.
Similarly, the automatic rejection of applications based on “security alerts”—which precludes judicial review and restricts recourse solely to administrative channels—renders the right to effective judicial protection meaningless, leaving applicants defenseless against state discretion. Notably, these are not new concerns; the Inter-American Commission on Human Rights has warned Ecuador about these deficiencies since 2017. Specifically, the Commission highlighted the excessive discretion arising from vaguely worded legal concepts, noting that such ambiguity opens the door to arbitrary and potentially abusive interpretations of the LOMH.
The situation in Ecuador illustrates the fragility of international protection in Latin America. It is clear that the formal validity of migration laws guaranteeing rights is insufficient if, in practice, they yield to a national security policy that ignores the spirit of the Cartagena Declaration and violates the principle of non-refoulement. In this sense, the concrete effects on the asylum system remain to be seen; however, to date, the door for those seeking asylum in Ecuador appears to be closing ever more.
Sara Mariella Lambertini Martinez is a Lawyer with a PhD in Social Sciences and Statistics from the University of Naples Federico II and a Master’s degree in Geopolitics and Global Security from La Sapienza, University of Rome. Since November 2024, she has been a Research Fellow at the ACCESS project, “Gatekeepers to International Refugee Law? The Role of Courts shaping the access to asylum”, at Alma Mater Studiorum University of Bologna, where she is responsible for the Latin American component, with a focus on Brazil, Chile, and Ecuador.
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