IACHR

Press Release

IACHR Welcomes Approval of New Migration Law in Brazil

June 16, 2017

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María Isabel Rivero
IACHR Press and Communication Office
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mrivero@oas.org

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Washington, D.C. - The Inter-American Commission on Human Rights (IACHR) welcomes the legislative approval and sanction of the new Migration Law in Brazil. The IACHR urges the Brazilian federal government to promote an open and transparent process for drafting the implementing regulations, with the participation of civil society, upholding inter-American principles, norms, and standards on human rights.

The IACHR welcomes the Brazilian State’s decision to replace the previous immigration law—the so-called Alien Statute, which dates back to a time of dictatorship—with modern legislation in keeping with the principles contained in its Federal Constitution. The new law incorporates into the Brazilian legal system the repudiation and prevention of xenophobia, the rejection of the practices of summary deportations or collective expulsions, the non-criminalization of migration, and non-discrimination based on the means of entry into the country. It also establishes humanitarian admission and free and equal access to public services, benefits, and social programs; public dialogue in the formulation, execution, and evaluation of immigration policies and the promotion of civic participation of migrants; comprehensive protection and attention to the best interests of migrant children or adolescents; the protection of Brazilians abroad; the promotion of the recognition of studies; and the right to migration and to human development as inalienable rights for all people.

The law also strengthens migrants’ access to civil rights and liberties and to social, cultural, and economic rights, including the right to family reunification, the rights to association and peaceful assembly, and the right to organize and bargain collectively. Along the same lines, it strengthens the guarantees of access to justice and to free legal assistance if necessary. The new law makes the procedures for regularizing immigration status more accessible, independently of their migration status, establishing clearer, more efficient mechanisms. It also updates naturalization procedures in general and makes them less bureaucratic.

One important legislative innovation is the creation of two mechanisms for protection: humanitarian admission through the issuance of a specific visa or residency status for situations which were not included in the previous law (considering Brazil’s experience with the issuance of humanitarian visas to Haitian citizens), and the protection of stateless persons. This mechanism in the Brazilian law is the result of the commitment made in the 2014 Brazil Declaration and Plan of Action, commemorating the 30th anniversary of the 1984 Cartagena Declaration on Refugees. Through the mechanism created in the legislation, a stateless person interested in this type of protection, once the person’s status has been determined, will receive permission for permanent residency in Brazil and may opt to use a simplified and expedited mechanism for Brazilian naturalization.

The new Brazilian law was drafted based on a process of widespread public participation that began in the pre-legislative stage. A Commission of Experts was created and tasked with proposing a bill, and a National Conference on Migration and Refuge was held. During the legislative phase, many of the contributions of the experts and the public were democratically considered for the Senate bill. The IACHR notes that this is the first comprehensive immigration reform in Brazil passed by legislative vote. Previous laws were the result of mechanisms that eliminated congressional approval or were adopted through executive order by authoritarian governments. To ensure that the Brazilian legislation achieves the stated results for society, the IACHR urges the Brazilian State to follow an open and transparent process for drafting the implementing regulations, with the participation of civil society, in accordance with inter-American principles, norms, and standards on human rights.

“I congratulate Brazil because this law represents significant progress for the protection of migrants and other persons in the context of human mobility,” said the IACHR Rapporteur on the Rights of Migrants, Commissioner Luis Ernesto Vargas Silva. “This law incorporates a great many improvements with respect to the Alien Statute; these represent good practices for other States in the region to follow.” Rapporteur Vargas also noted that the law was drafted based on a widespread public participation process that began before the legislative phase. “Its content was widely accepted and had been unanimously approved in the Senate, which is why I cannot help but express regret over the vetoes made to the legislation at the end of this process,” he said.

The IACHR regrets that provisions of the Migration Law were vetoed, eliminating the possibility of granting amnesty by issuing residency permits to migrants in irregular status and also the possibility of not deporting people convicted of crimes. The right of indigenous peoples to transit freely regardless of State-drawn borders was also denied. The vetoes also eliminated the possibility of revoking expulsions adjudicated before the 1988 Federal Constitution went into effect, as well as the possibility for foreigner nationals to hold certain public posts. The IACHR reiterates that for policies and laws on migration to follow a true human rights approach, it is necessary to separate migration functions from criminal police functions. Despite this, the IACHR values the new Brazilian law and believes it represents a step forward and an important benchmark for the entire region, particularly in a global context where several countries have adopted restrictive immigration policies and more rigid mechanisms for the admittance of immigrants to their territories.

A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for and to defend human rights in the region and acts as a consultative body to the OAS in this area. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.

No. 078/17