5 steps forward in the New Migration Law

The New Migration Law was written on the basis of the Constitution and human rights

Créditos: Thiago Dezan/ Farpa/ CIDH

The new Migration Law sets a new paradigm in Brazil as it substitutes the Foreigner’s Statute and institutes a perspective of migration based on human rights, repudiating xenophobia, racism and any form of discrimination, as one of its principles. See the changes below:

 

1. Migratory Legalisation: the promotion of legal entry and of legalisation is established as a principle. The New Law also ensures exemption from charges for the issue of documents for migrants who do not have the financial means to pay;
2. Humanitarian Visa: Five types of visa have been introduced for entry or permanent residency in Brazil. The temporary one is given in the case of humanitarian protection for stateless people or migrants from any country ‘in a serious situation or imminent institutional instability, armed conflict, large-scale calamity, environmental disaster or serious human rights violations or of international humanitarian rights, or in other hypotheses, in the form of regulation.
3. Public Policy: Equal free access for migrants to services, programmes and social benefits, public services, education, full public legal assistance, work, housing, banking services and social security is one of the principles of this new law.
4. Participation in protests and trade unions: the right to mobilisation was forbidden in the Foreigner’s Statute. The new law establishes a migrant’s right to meet for peaceful purposes and for association, including trade unions, for legal ends.
5. No extradition for political crime or opinion: Like the 1988 Constitution, the new law states that there should be no extradition for political crime or opinion, and also prohibits extradition for refugees and exiles.

Dispelling myths about migration

As seen in the previous report in this series, achieving this result in a turbulent political scenario was only possible given the dedication of a number of different organisations, including Conectas, who worked together to convince members of Congress of the importance of the new legislation and to obtain the votes needed. 

Venezuelan refugees in shelters after crossing the Brazilian border with Venezuela Credit: Thiago Dezan / Farpa /IACHR 

This work, however, did not end with the approval of the law. On the contrary! In an environment of polarisation, the first step was to strengthen communication with society, in order to dispel some of the myths surrounding the subject. It is more than likely that you are familiar with at least one of these myths: the country is going to be overrun by immigrants! There is going to be a greater risk of terrorism! This kind of statement is loaded with prejudice and is quite unfounded.

A decree, in the middle of the process

While this process of dialogue was being built on one side, on the other, organisations were concerned to see that a decree to regulate the Migration Law was being put together by the government of Michel Temer behind closed doors, quite unlike the draft bill that was being constructed collectively. 

Only three opportunities were opened for discussion of the theme which gives an idea of the degree to which social participation was restricted:

• Activity of the Forum of Social Participation held by CNIg (National Immigration Board, linked to the Labour Ministry, in August, in São Paulo and which led to 68 proposals being made for the decree; 
• An online public consultation on the draft decree, from 1 to 13 November; 
• A public hearing on 13 November in Brasilia.

The final text of decree 9199/2017 was issued on the same day the Migration Law came into effect, with 318 articles, almost three times as many as the legislation it regulates and ignoring most of the suggestions made, as well using the term “clandestine immigrant.”

“Society has not had adequate participation in the decree issued today. Public consultation was more like a monologue by the government than an exercise in listening, given that the many proposals presented on both the online platform and at the public hearing were ignored.” This was the criticism made at the time by Conectas Programme Coordinator, Camila Asano.

This indignation led to an open letter signed by Conectas and dozens of organisations and experts in which  gaps in the decree and interpretations that contravened the law were pointed out. 

 

Art: Bianca Baderna

Problems of the decree to Regulate the Migration Law:

• Confusion between criminal justice and migration is maintained when the right to migrate is dependent on absence of previous record and penal condemnation. This instils a double penalisation.
• Unlike the Law which guarantees non-criminalisation of migrants on the grounds of their migratory status, it provides for imprisonment of migrants on the grounds of migratory status
• It includes a provision for imprisonment for administrative purposes, a practice that is forbidden by the Federal Constitution
• It does not set out parameters on conditions, time-frames or requirements for the issue of humanitarian visas
• It creates a complex intricate system of types of visas and residential visas, linking access to documents to motives, occupations and restrictive, provisional conditions.

Ongoing challenges

In addition to contravening a number of items in the Migration Law, the regulatory decree also left some important points out of the text. One example is the creation of the National Policy on Migration, Refuge and Statelessness, the aim of which is to discuss actions in all spheres of government, making the day to day life of those who migrate to this country easier.

 

Asano stresses that, since Conectas took the decision to work on approval of the Migration Law it had already included it its planning that work would not end with the legislation coming into effect, as this had happened in other cases. 

Conectas is working towards the efficacy of the law, by training professional people to assist migrants and participating in debates on the theme, as well as continuing with actions of advocacy in Brasilia in order to overcome the gaps left by the decree and to get laws passed to ensure the rights that have been vetoed in the Migration Law, like the migratory amnesty.

Learning with the migrants

One of the points reinforced by the experience of Conectas and other organisations and experts is that migration enriches a country through inter-cultural dialogue. Dance, arts, fashion, music, cinema, food and so many other languages that migrants bring us, allow a very real exchange without the need to cross borders.

In São Paulo, areas like Liberdade and Bom Retiro reflect a little of this experience. This can also be experienced in courses offered by migrants, at cultural events held throughout the year and also on platforms that provide information on this kind of activity so that more people can find out and understand that migration is a huge gain for society. 

Would you like to be part of this network? Make a donation to Conectas and help strengthen work to support migrations and human rights in Brazil.