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.

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