Immigration Law and Policy in Brazil: assessing a presumable shift from the perspective of immigrants as threats towards subjects of rights

By Luciane B. D. Pivetta

Brazilian immigration policy faced some deep changes in the last few years due to the development of a new legal system regarding this matter. The previous migration law date back from the 1980s, during a totalitarian civil-military regime and, despite the rebirth of democracy in 1988, this law remained in place for almost four decades. Because of that historical moment, the past immigration policy was focused on national public security and economic development. In contrast, the current law established human rights as one of the principles and guidelines of the Brazilian migration policy. Therefore, this book debates the extent to which a shift in the immigration law in Brazil has happened, moving away from the perspective of immigrants as threats towards seeing them as subjects of rights.

• Language: English
• Publisher: Editora Dialética
• Release date: Nov 4, 2020
• ISBN: 9786558773801

Book preview

I dedicate this book to my parents, Ayrdes Benedita Duarte dos Anjos Pivetta and Darci Luiz Pivetta. Thank you for being my best examples of passion and dedication to studying.

TABLE OF CONTENTS

Capa

Folha de Rosto

Créditos

INTRODUCTION

1. VISA AND RESIDENCE POLICIES

1.1 FAMILY REUNIFICATION

1.2 HUMANITARIAN PROTECTION

1.3 MEDICAL TREATMENT

2. NON-CRIMINALISATION OF MIGRATION

2.1 IRREGULAR ENTRY OR OVERSTAY

2.2 DEPORTATION

2.3 EXPULSION

3. CONCLUSION

4. BIBLIOGRAPHY

4.1 Cases

4.2 International Legislation - Brazil (Constitution, Laws, Decrees, and Statutory Instruments)

International Conventions

4.3 Books, Articles, Theses, and Conference Papers

4.4 Newspaper Articles and Websites

Landmarks

Capa

Folha de Rosto

Página de Créditos

Sumário

Bibliografia

INTRODUCTION

This study will focus on the legal treatment of immigrants¹ in Brazil, comparing some aspects of the previous and the current migration laws, which are Law 6.815/1980 and Law 13.445/2017, respectively.² Therefore, it is important to define the object of this study, which is the immigrant in Brazil. The concept of immigrant will follow the current Brazilian migration law,³ which established two requirements to be an immigrant:

a) the person is a citizen from another country, or the person is stateless;⁴ and,

b) the person is working or living in Brazil, regardless if temporarily or permanently.

The justification for choosing the concept adopted in the current migration law is because the previous one used the term foreigners. Albeit the word immigrant is more adequate because it does not perceive individuals as outsiders or as not belonging to the community in the same way as foreigner resembles.⁵ While foreigner means ‘the individual who is not defined as intrinsically belonging to the collectivity’,⁶ immigrant simply refers to someone who resides in a country other than the state of his/her nationality.

The former Brazilian migration law, known as the Foreigner’s Statute, was made in 1980 and stated that ‘in the application of this law it will be prioritised the national security, the organisation of the institutions, the political, socio-economic and cultural interests of Brazil, as well as the defence of the national worker’.⁷ Here, the immigrant represented labour competition as well as a threat to national security. The national security policy erupted after the Second World War when the main worry was to defend the state against communists, who were considered to be enemies.⁸ Together with the Foreigner’s Statute, Decree 86.715 also ruled the immigration policy since 1981, regulating the rights of immigrants for the first time in Brazil. Nevertheless, migrants’ rights could be weakened to protect the national worker, security, or any other institutional, political, socioeconomic, and cultural interests.⁹ The concept of national security could be broadly interpreted and used as a justification to restrict immigration when considered convenient by the government. Hence, the national security doctrine was a way to support the repressive purposes of the authoritarian regime in Brazil, which came into force after a coup in 1964 and remained until 1985. Only in 1988 was a democratic constitution proclaimed. Despite this, the Foreigner’s Statute remained formally valid in the legal system until November of 2017, when Law 13.445 came into force after 180 days of vacatio legis.

According to the Brazilian legal system, which follows the Romano-Germanic legal system, legal norms that were developed before a new constitution can be received or non-received by the novel legal order, depending on its (in)compatibility with the new constitution. However, this evaluation with erga omnes effects only happens if a judicial case is brought to the Supreme Court with this purpose.¹⁰ Consequently, almost all articles of Law 6.815 remained binding, despite its evident inconsistency with the 1988 Magna Carta. For instance, the Foreigner’s Statute did not respect some principles and guarantees established by the Federal Constitution of 1988, such as the equality between foreigners and citizens without discrimination. As an example, the Foreigner’s Statute prohibited the mere participation of immigrants in political manifests or meetings, which could lead to their detention for one to three years and their expulsion from the country.¹¹ Consequently, a considerable number of parallel norms were created during the years of validity of the Foreigner’s Statute, aiming to fill these gaps and correct these historical mistakes. For this reason, the development of a massive quantity of disassociated rules made the job of the officers, lawyers, and migrants a nightmare. The evidence is that, in the following 35 years of the Foreigner’s Statute, 10 complimentary laws and 117 normative resolutions were implemented to simplify unnecessary bureaucratic requirements.¹² Nevertheless, this solution found by the executive branch to frequently introduce new rules through normative resolutions was not ideal, considering the separation