The “Rights of Aliens” in Brazil – Beyond the use of a Mistaken Term

The “rights of aliens” in Brazil – beyond the use of a mistaken term

As it is widely known, the settlement of people in Brazil mainly occurred through immigration of the Portuguese, as well as of the people being brought from Africa (because of the Atlantic slave trade). Now, however, Brazil receives people from many different nations. These newcomers glimpse in Brazil the opportunity to undertake their businesses, complete or start their studies, or even escape from dire situations in their home countries.

According to Brazil’s last census, there were 431,319 foreigners living in Brazil in 2010.[1] In comparison to the census of 2000 (510,067 foreigners), the number of foreigners in the country has decreased. [2] However, the last census did not include either the massive inflow of Haitians Brazil has been receiving since the end of 2010, nor the current global refugee crisis, which Brazil, in a smaller proportion, is also experiencing.[3]

Foreigners in Brazil have their rights guaranteed by the Brazilian Foreigners’ Statute, which regulates the entrance, permanence, and compulsory departure of a foreigner in the Brazilian territory.[4] This Statute is, together with some specific refugees’ protection instruments as well as with the Brazilian Constitution, the most important legal instrument for the protection of all foreigners in Brazil.

The Brazilian Constitution was brought to life after the Foreigners’ Statute and it grants an equal treatment of both Brazilians and foreigners. Article 5 of the Constitution states that all people are equal before the law, i.e., all Brazilians and foreigners residing in Brazil are entitled to the inviolability of the right to life, freedom, equality, security and property: the so-called fundamental rights.[5] From the literal interpretation of Article 5, it could be understood that only the foreigners residing in Brazil have their fundamental rights guaranteed. However, the doctrinal interpretation[6] and the courts[7]  understand that the text of this article takes into account all immigrants, including the nonresidents in Brazil.

Further, according to Article 95 of the Brazilian Foreigners’ Statute, foreigners living in Brazil are entitled to the same legal treatment as Brazilian citizens.

In April 2016, however, some of the fundamental rights of foreigners living in Brazil were jeopardized. The National Association of Federal Police Officers (FANAPEF) has issued a polemic press release on its website. That press release recalled that, in the territory of Brazil, foreigners are prohibited from not only supporting any political position, but also from taking part in any demonstration or from organizing and taking part on reunions of any nature.

Less than one month after this press release, for example, an Italian citizen who works as a professor for a Federal University in the State of Minas Gerais was under formal police investigation for being active inside political parties, taking some political actions and taking part in demonstrations.[8]

FANAPEF has supported its press release on Article 107 of Brazilian Foreigners’ Statute, which states (among other points) that foreigners cannot exercise political activities in Brazilian territory, and cannot (directly or indirectly) interject into Brazil´s public issues. In this sense, the same article prohibits foreigners from maintaining any political society, group or entity or from organizing demonstrations that aims at discussing either Brazilian internal issues, or political issues of their home countries.

Article 65, of this same legal instrument, states that foreigners should be expelled from Brazil if, in any way, they undermine national security; political or social order; tranquility or public morality, and/or Brazil´s economy.  Article 65 (d) reinforces that, for the sake of national interest, the breach of any prohibition prescribed in Brazilian Foreigners’ Statute should justify the banishment of foreigners.

The literal interpretation of these aforementioned articles was used as FANAPEF’s main argument. However, one must note that this same statute – acting as the main legal instrument for enshrining the rights and duties of foreigners in Brazil – was created in 1980, a time when Brazil was facing a long and difficult military dictatorship. It is because of this dictatorship context that courts have not applied this statute, along with other legislation that was put into effect during the dictatorship, since the birth of the democratic Brazilian Constitution in 1988.

In other words, Brazilian Foreigners’ Statute is a statute that still limits fundamental rights enshrined by the Brazilian Constitution and was recently evoked  by FANAPEF in order to suspend fundamental rights of foreigners in the Brazilian territory. The Foreigners’ Statute is clearly in conflict not only with the Constitution, but also with some international law instruments, such as the International Covenant on Civil and Political Rights of 1966 (especially with its Article 19, which enshrines, among other ones, the right to hold opinions and to express them, provided that rights or reputations of others are also respected).

The incompatibility between Statute and Constitution is only one of the several cases that enable jurists to clearly see that the Brazilian Foreigners’ Statute needs to be completely reformed. Indeed, there is draft legislation called Projeto de Lei nº 2516/2015, which is still being discussed by the Parliament, that proposes a new Migration Law for Brazil.[9] This new law aims to transform the idea of being a foreigner into being a migrant and, therefore, having their dignity and their human rights guaranteed. In this sense, this draft does not reproduce Article 107 of Brazilian Foreigners’ Statute and any other article that limits any fundamental right of migrants in Brazil.

However, Brazil shall not wait for the approval of this draft legislation in order to guarantee migrants – or any person who is not a Brazilian citizen – the freedom of speech. Rights imposed by the Constitution should never retroact solely in favor of the interest of a group of people.

 

[1] Instituto Brasileiro de Geografia e Estatística  – IBGE (2012). Censo demográfico 2010 – nupcialidade, fecundidade e migração. Resultados da amostra, p. 255.

[2] Instituto Brasileiro de Geografia e Estatística  – IBGE (2003). Censo demográfico 2000 – migração e deslocamento. Resultados da amostra, p. 74.

[3] Oliveira, Antônio Tadeu de (2015). O perfil geral dos imigrantes no Brasil a partir dos censos demográficos 2000 e 2010. Cadernos Obmigra – Revista Migrações Internacionais 1 (2), 48-73, p. 51.

[4]Estatuto do Estrangeiro, Lei Nº. 6.815, de 19 de Agosto de 1980

[5] Art. 5º Todos são iguais perante a lei, sem distinção de qualquer natureza, garantindo-se aos brasileiros e aos estrangeiros residentes no País a inviolabilidade do direito à vida, à liberdade, à igualdade, à segurança e à propriedade, nos termos seguintes: […]

The current constitution of the Federal Republic of Brazil dates from the October 5, 1988, after a 21-year dictatorship period. Since its existence, 93 constitutional amendments have already been carried out. The Constitution of Brazil is available at http://www.planalto.gov.br/ccivil_03/constituicao/constituicao.htm available on: 05.10.2016.

[6] From the literal interpretation of Article 5, it could be understood that only the foreigners residing in Brazil have their fundamental rights guaranteed. However, the doctrine interprets the text of this article including all immigrants, also the ones who do not live in Brazil. The way this article was written has to do with the political rights, which are enumerated in Article 5, to which only Brazilians and foreigners living in Brazil may have access. For more details see Dolinger, J.; Tiburcio, C. (2016). Direito Internacional Privado, p.179 and Carvalho, K. G. (2007). Direito Constitucional, p. 587.

[7] See, for example, decision from the Brazilian Constitutional Court: STF, HC 94016 MC/SP, rel. Min. Celso de Mello, j. 7/4/2008. Another interesting decision from the Federal Court of the State of São Paulo (TRF 4ª Região, AG 2005040132106/PR, j. 29/8/2006) has guaranteed that even illegal immigrants in the Brazilian territory should have access to fundamental rights. In this case, the judges decided that the so-called “illegal immigrant” should have entire access to publicly funded healthcare system, which is offered in Brazil for free.

[8] There has been a habeas corpus proceeding on the case of this professor. The entire content of this proceeding was received from: http://processual.trf1.gov.br/consultaProcessual/processo.php?proc=278947020164013800&secao=MG&nome=MARIA%20ROSARIA%20BARBATO&mostrarBaixados=N. Available on 26.09.2016.

[9] A full version of the draft is available at http://www.camara.gov.br/proposicoesWeb/prop_mostrarintegra;jsessionid=A291FE3B8DFE2A19F5A685A749CDDF10.proposicoesWeb2?codteor=1366741&filename=PL+2516/2015, accessed on 05.10.2016. Its legislative drafting process in the parliament can be followed at http://www.camara.gov.br/proposicoesWeb/fichadetramitacao?idProposicao=1594910, accessed on 05.10.2016.

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4 thoughts on “The “Rights of Aliens” in Brazil – Beyond the use of a Mistaken Term

  1. Great contribution! A question though: has the Brazilian Supreme Court ruled on cases involving rights of “foreigners”? If so, did it consider the Statute to be limitative of fundamental rights?

    • Hello, Victor!
      Sorry for the late answer.
      The Brazilian Supreme Court has several decisions involving the rights of “foreigners”. Lots of them refer to the process of extradition (as extradition belongs to one of the Tribunal’s competencies) and to expulsion of the foreigner, always taking into consideration their legal equality with Brazilians. There are even some recent decisions of the court that reinterpret some provisions of the statute, making it more flexible and, consequently, “fundamental rights oriented” (see, for example, Extradição no. 1327/DF).

      The Brazilian Supreme Court has not expressly considered the Statute as a barrier when trying to achieve fundamental rights, but the Tribunal emphasizes the fact that foreigners (even if not resident in Brazil) should have access to fundamental rights, such as the decision mentioned in the article.
      Many thanks for your comment!
      Kind regards,
      Emília.

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