In recent weeks, international headlines regarding Brazil have focused on the country’s widening corruption scandal, including allegations leveled against President Michel Temer. Amidst this ongoing turmoil, a significant development last week has received little global attention: the passage of a new immigration law, which explicitly embraces human rights principles, emphasizes equality between migrants and Brazilian nationals, and provides a thoughtful framework for the development of future migration-related policies. Although various provisions were subjected to a line-item veto by President Temer, the law overall represents a progressive and inclusive approach to managing migration – a standout, given rising xenophobia and stricter border controls in many parts of the world.
The new Migration Law (No. 13,445) largely replaces Brazil’s Alien Statute, which was enacted in 1980 during country’s military dictatorship, and which approached migration law from the perspective of national security and social control. The new law, by contrast, adopts a set of progressive principles to guide Brazilian policy, including the non-criminalization of migration, family reunification, and equal access by migrants to social program and benefits, education, and housing. Although many migrant-receiving countries have sought to limit the rights afforded to noncitizens, Brazil now guarantees to migrants within its borders, “in conditions of equality with [Brazilian] nationals, the inviolability of the right to life, to liberty, [and] to equality[.]”
Protection of vulnerable populations is a recurring theme in the new law. Article 14 allows temporary visas to be issued for humanitarian protection, codifying resolutions adopted by Brazil’s National Council on Immigration (to protect Haitian nationals) and its National Committee for Refugees (concerning persons affected by the conflict in Syria). Likewise, the law contains provisions designed to protect stateless persons and to provide robust support to Brazilians overseas. Consistent with international law, the legislation also prohibits the repatriation, deportation, or expulsion en masse of groups of migrants.
Notably, the law also calls for social dialogue in the formulation, implementation, and evaluation of migration policies, and requires the inclusion of voices from civil society, international organizations, and the private sector. Coordination among federal, state, and municipal governments is also contemplated by the law. To inform the development of policies, the law calls for research relating to migration, and for the creation of a repository of data. Although still only a blueprint, these guidelines are designed to preempt the fissures that have hampered the immigration debate in the U.S. and other countries.
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Notwithstanding the many progressive principles enshrined in the new law, some of the vetoed provisions reflect latent concerns regarding migrant criminality and national security. For example, President Temer vetoed a provision that would have legalized migrants in irregular status (by conferring permanent residence), provided they had entered the country by July 6, 2016. Another vetoed provision would have insulated a foreign national from expulsion for crimes committed more than four years after entry into Brazil. As members of Brazil’s Congress seek to overturn some of the vetoes, and as the Brazilian government begins to draft the implementing regulations for the law, such concerns are likely to resurface. Indeed, in the weeks before President Temer formally approved the law, the Federal Police and Ministry of Defense both expressed their opposition to the law; a small but vocal group of opponents from civil society likewise sought to derail the legislation, citing dangers that migrants allegedly pose to Brazilian society.
On the surface, Brazil seems to have an environment where anti-immigrant sentiment could flourish: a consistent stream of international migrants, a diversifying society, and an economic crisis that has fueled rising unemployment. For this reason, its new law – which rejects the scapegoating of migrants, and instead emphasizes equal rights and humanitarian protection – is especially notable. Many unknowns remain, including the content of the accompanying regulations and overall implementation of the law. Regardless, Brazil has already provided the international community a powerful example of a just, dignified, and balanced approach to managing migration.
Jayesh Rathod is a professor of law at American University Washington College of Law and was a 2016-17 Fulbright Scholar in Brazil. Carolina de Abreu Batista Claro is a professor of migration and refugee policy at the International Relations Institute of the University of Brasilia.