Brazilian Migration Law: Principles and Guidelines
The Migration Law (nº 13,445/2017) is a revolution in Brazil.
Its predecessor, the old Foreigner Statute (nº 6,815/1980), a law based on the “Doctrine of National Security” from civil-military dictatorship (1964–1985) was a inefficient protectionism to the Brazilian labor market and industry. As an authoritarian regime, it was necessary to find a commom enemy to justify potential failures. So the statute served the civil-military regime as one of the legal support to banned the so-called “enemies”: the foreigners.
From this origin, the presence of immigrants in Brazil was institutionally seen as contrary to nationtal interests. And given that the Public Administration must always comply with legal precepts, the interpretations and applications of the Foreigner Statute resulted, in large part, in violations of fundamental rights and guarantees enshrined in the Constitution.
The New Migration Law, in contrast to the Foreigner Statute, protects the constitutional text, in particular with the fundamental principles of human dignity and development, which are its guidelines for application to the specific cases.
For instance, one of the objectives of the Migration Law was to remove the pejorative charge coined in the word “foreigner” . Thus, although very rare exceptions, the expression “foreigner” is not used in the new legal text to name the individual who moves from a country or geographic region to the national territory.
Hence, the legal diploma (nº 13,445/2017) establishes concepts that were not previously provided for in the Foreigner Statute. There are new legal designations as “Immigrant”, “Emigrant”, “Frontier resident”, “Visitor” and “Stateless person”.
Economic globalization, armed conflicts and climate change require resilience in the nations with stable democratic institution, so they can receive a larger contingent of immigrants and refugees with respect of human rights.
International trade between Developed Countries and Developing Countries, by using the techniques of the technical-scientific-informational world, overcome barriers, physical or bureaucratic, more and more easily. Therefore, the need to preserve rights in other states and facilitate human mobility between countries has become essential for globalization.
In this context, it is a good idea to remember that restricting migratory regularization does not prevent displacement and, worse, degrades the living conditions of the migrant, who rightly starts to fear the authorities.
For Brazil, due to its global, social and economic relevance, participate in this movement for greater human mobility is to foresee positive long-term effects. With the notion that migrations support development, there is no reason for Brazilian society to restrict this process. Thereby, the Migration Law requires that immigrants should not be understood as usurpers of jobs, or as limiting the strength of the labor market.
Therefore, Brazil does not miss opportunities for the future with its more permissive legislation. Quite on the contrary. In line with human rights, and a effective long-term planned migration policy — the so-called National Policy on Migration, Refuge and Statelessness (NAPOMIRES, or PNAMRA in Portuguese) — , Brazil predicts a better way to migrations and human development.
*This article is a free adaptation from “Comentários à Lei de Migração”, published by Thomson Reuters Brasil (2020).
