Brazil´s Migration Governance: Hidden Actors, the New Law and the 2018 Presidential Elections

By Diego Acosta, Marcia Vera Espinoza and Leiza Brumat

Brazil, the largest country in Latin America and the ninth largest economy in the world, has begun 2018 with a good deal of political uncertainty. Following his conviction for corruption, now being appealed, former President Lula da Silva – a well-known advocate of migrant’s rights – might not be able to stand in October’s Presidential election. Jair Bolsonaro, a presidential contender from the far right, who was a vociferous opponent of the 2017 migration law, and an admirer of Trump, is, meanwhile, second to Lula da Silva in the polls. The upcoming election will not only shape Brazil’s political future, it will also have important consequences for migration governance in the country. This follows an eventful 2017, characterised by both change and retreat in Brazil’s migration policies, the emergence of new actors and the return of old security agendas.

Brazil has a strong immigrant tradition. But only 0.3 percent of today’s population are foreign residents. The country amended its migration law in 2017 and the new Law, which entered into force on 21 November 2017, derogated the previous 1980 Act that had been adopted under the military dictatorship. Despite the fact that the current Brazilian President, Michel Temer, vetoed, at the last minute, some Articles, the law was widely praised. It followed the rights-based approach that had been advocated in the region since the turn of the century, and which had also led to new laws in other South American countries. The new law, approved by an overwhelming majority in Parliament, was put together through a participatory process: the ministries of Justice, Foreign Affairs and Labour, the federal police, as well as civil society and academic experts were all involved.

However, on 20 November 2017, the day before the entry into force of the new law, the Government officially published Decree 9.199 regulating the law’s implementation. The Decree was largely the work of the Executive and there was little room for input from other actors. The outcome was an inconsistent, contradictory text which breaches both the new migration law and the 1988 Constitution. Three examples will suffice to exemplify this, but also to highlight the variety of actors and agendas affecting migration governance in Brazil and its expression in its legislative framework. First, the Decree contradicts the principle of the non-criminalisation of irregular migration, enshrined in the Law, by making it possible to imprison undocumented migrants pending their expulsion; something also prohibited by Brazil´s Constitution. It is here that Tribunals emerge as central actors in the legal architecture of migration governance. Indeed, in December last year, a Federal Regional Tribunal in São Paulo issued an injunction against the imprisonment of a non-national awaiting expulsion. Second, the new implementing Decree does not specify the conditions under which non-nationals might be granted a humanitarian residence permit – one of the central tools in Brazil´s migration governance in the last decade. Rather, it leaves this open to be decided at a later stage by the Ministries of Justice and Public Security (equivalent to the Ministry of Interior in other jurisdictions), Labour and Foreign Affairs. As such it shies away from one of the main raison d´être for an implementing Decree, namely regulation of the procedure and rights of those obtaining different types of residence. Thirdly, and crucially for our analysis, the Decree grants extensive powers to the Federal police in numerous areas affecting the admission, residence and expulsion of non-nationals.

The new Decree exemplifies a fundamental shift in political and power dynamics within state actors, a shift that will profoundly affect migration governance. The MIGPROSP team conducted more than twenty interviews with key actors in July 2015 and then, again, in August 2017. Our last visit coincided with the moment when the migration implementation regulations were being discussed. Our interviews offer insights into the political dynamics shaping Brazilian migration governance under President Temer. Much as is happening in Argentina, state actors with a security agenda – in Brazil the Federal Police, Ministry of Defence and the Cabinet of Institutional Security of Presidency – seem to be (re)gaining the upper hand.

One of the big pressures was national security concerns and this influenced the vetoes in the [migration] law. We had this discourse saying that terrorists and traffickers will come to the country. This became a big pressure. Our system includes the Federal Police, the Ministry of Defence and intelligence bodies. All these were against some of the points in the law, generating great resistance. (Parliament Advisor, Brasilia)

Interviewees also mentioned the salient role of the ‘Casa Civil’ (Chief of Staff) – an organ close to the Presidency. Casa Civil was never mentioned as playing any role in migration governance during our interviews in 2015. By contrast, in 2017 interviewees refer to it as being the ‘last word on migration issues’:

The Ministry of Foreign Affairs and the Ministry of Labour are not subordinate organs of the Ministry of Justice. Within the administrative sphere they have the same degree of importance and responsibilities. Therefore, situations will certainly occur in which the understanding and decisions between these organs will be divergent. And the Casa Civil is superior to all ministries and is the organ that is going to decide the best interpretation (Civil Servant, Brasilia).

According to some interviewees, the emergence of these new ‘hidden actors’ in migration decision-making did not happen in a political vacuum. Rather, it was the result of instability in the Ministry of Justice, which suffered from the reshuffling of key roles, as well as the weakened role of the National Migration Council (CNIg), based in the Ministry of Labour and once the key source of migration administrative regulations. These “hidden actors” played a crucial role in lobbying in favour of the Presidential vetoes for the 2007 Migration Law. One interviewee stated how in the draft law there was initially a ‘non-written’ agreement about the responsibilities that each institutional actor would have, something that was going to be consolidated in written form in the Decree laying down the implementation regulations. However, the vetoes produced a new power struggle over the Decree, “to show who within the government has the power to pass their own agendas. The agreement that previously prevailed no longer exists” (NGO Official, Brazil).

The 2018 Presidential and Parliamentary elections (two-thirds of the Senate seats and all the Camera of Deputies seats are up for grabs) will affect key legislative initiatives currently under discussion in both Cameras on the political rights of foreign nationals in domestic elections and on the regularization of undocumented migrants. Brazil’s elections also will shape the extent to which the new “hidden actors” described above continue to play a central role securitizing the migration policy-making agenda. This political scenario is coupled with some pressing challenges such as increasing Venezuelan displacement, which is being labelled as a “refugee crisis” by the media and some political actors. These current developments will be determinant in migration governance in Brazil in the years to come.

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