Brazil’s new migration law: a huge step forward for migrant rights protection

This week (6 December) the Brazilian Congress voted by a majority of more than 70% in favour of the adoption of a new migration law. This law will replace the present framework adopted in 1980 during the military dictatorship (though it will only come into force after ratification by the Senate and six months after its official publication).

Despite its recent financial and political problems, Brazil remains a key country in the global arena. Together with Russia, India and China, Brazil is one of the BRICs and an economic giant – indeed the ninth largest economy in the world. Moreover, Brazil is both an emigration and immigration country and a crucial actor in the development of free movement of people and the bid to construct a regional citizenship in South America.

The new law will end a legislative ordeal that has been ongoing since 2009 and which has witnessed numerous unsuccessful proposals. The final text represents a huge step forward in the protection of migrant rights and further confirms South America as a region ready to explore novel approaches towards the regulation of the status of foreigners. It is also an example of how even in periods of governmental and economic crisis – Brazil´s former president was impeached this year and the country has been suffering economic recession since 2015 – migrants do not necessarily end being used as scapegoats.

Among the law’s various innovations three merit particular attention. First, in line with the principle of non-criminalization of irregular migration (Art. 3), Brazil turns upside down the classical approach towards undocumented migrants by prioritizing access to legal status rather than deportation. This constitutes a far-reaching development and true revolution in comparative perspective.

Indeed, and in line with what other South America nations such as Argentina or Uruguay are already doing, regularization becomes a first compulsory option in cases of irregular stay. Under Article 48, the administrative authorities are obliged to notify the undocumented migrant of the possibility to regularize and to offer a period of at least 60 days for such purpose. In other words, regularization becomes an individual procedural right. The individual who is physically present in the country and apprehended must, prior to deportation, be given an opportunity under the existing substantive migration rules to regularize their status. Finally, the law also offers a regularization extraordinary procedure to those migrants who entered the country before 6 July 2016.

Second, the new law guarantees the right to family reunification with spouse or partner (regardless of gender or sexual orientation) and children (including those of the spouse or partner), as well as other family members including ascendants and descendants to second degree and siblings. Moreover, in line with the Inter-American Court on Human Rights Advisory Opinion 21/14, the concept of the family is understood widely so that the State may extend family reunion to other hypotheses of kinship, affective dependence and factors of sociability (Art. 33).

Third, the new law recognises the privileged position of South American nationals covered under the MERCOSUR Residence Agreement and the need to continue strengthening economic, political, social and cultural integration through the construction of spaces of common citizenship and free movement of people (Arts. 3 and 111). However, the expansion of rights to all, both regional and non-regional migrants, means that Brazil largely avoids creating a two-tier structure where some foreigners fall under a privileged treatment while most do not.

As mentioned above, the Senate must now ratify the adopted text before its official publication. Once that happens, however, the transition from a largely closed framework into an open one will not be complete. The law leaves several aspects open for future action by the implementing regulations. Also, almost a century of antipathetic legislation towards foreigners, dating back as far as the aftermath of the 1929 economic crisis, means that restrictiveness is embedded in the daily practices of various bureaucracies. Access to rights is never guaranteed by a good text; correct implementation and interpretation is essential. Thus the new law will need socialization, diffusion and explanation so that all actors, notably public officials, judges and lawyers, but also migrants themselves, are informed as to its precepts and apply them correctly.

Despite these challenges, the new law is a tremendous step forward and should serve as an incentive for the adoption of new progressive laws currently under discussion in Ecuador, Chile and Paraguay. It is also excellent news for those defending more open frameworks at a point in time where Brexits and Trumps seem only to point in the direction of closure.

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