Updated: Oct 18, 2020
It is necessary when analysing Brazilian migration law to remember the harmful nature of the law to those inhabiting the “zone of non-being” and to question the normalisation of the law as the main and unquestionable source of protection to non-white migrants. This is despite the new legal framework regarding migration and the high number of judicial claims in Brazil in recent years which have championed migrants’ rights.
In November 2017, Law n. 13,445/2017, also known as the new Migration Law in Brazil, came into force. It replaced the Aliens’ Statute, or Law n. 6,815/1980, which, although highly criticised by local scholars and different sectors of civil society for its authoritarian content, remained in place for almost forty years. Some say that this was due to the lack of consensus regarding its replacement, as well as to the many different interests encompassed in the topic of migration. The former legal framework for migration in Brazil involved a great many non-statutory normative resolutions issued by the government without any legislative procedure, and they provided individual answers to specific situations. This meant, on the one hand, that the law in place did not provide state bureaucracies with the tools and resources to approach the wide variety of situations that could emerge, and measures and policies were essentially reactive to specific dynamics as a result. On the other hand, migrants could not count on the existing legal mechanisms to claim rights, becoming increasingly dependent on the discretion of public and private interests. It is therefore not surprising how the new Migration Law, despite its late arrival, was welcomed by many in Brazilian society. In 2017, the country was already receiving a large number of migrants from Venezuela, and the influx of Haitian migrants remained significant. The introduction of a better legal framework was thus essential to allow new and different types of social mobilization and legal strategies. In addition to the internationally praised Brazilian Refugee Law, the new migration law strengthened Brazil as world-leading in terms of legal protection to migrants in the country, receiving high praise from the international community in the form of local “good practices” (IOM, 2018).
Notwithstanding the undeniable importance of the new migration law, it is important not to distract ourselves. The law has historically been manipulated as a technology of social control by the social, political, military and economic elites to uphold their interests; the law is unable, on its own, to produce emancipation to individuals located in the zone of non-being  (Pires, 2019). This means that this new legislative instrument is unable to determine a “new normality”, in which the guarantee of rights is the rule and their violations is the exception. The mere issuing of a new law is thus incapable of shifting decades of migratory governance centred in the dehumanisation of non-white migrants
It is not difficult to see this being confirmed: despite the far-reaching and democratic writing of the proposed legal text of the current migration law to the Brazilian Parliament, the approved law’s applicability and regulation sparked little or no participation from organised civil society or from directly affected groups. The lengthy and complex decree which regulated the new migration law re-introduced many practices of the past years, such as the ample state discretion concerning migration governance. The justification for the many presidential vetoes to the new migration law has also demonstrated the strength and the nature of the interests of the instituted powers. In addition to that, the victory of Jair Bolsonaro to Brazil’s presidency in 2018 short after the issuance of the new law is significant, especially considering that he was one of its main opponents whilst a member of the Brazilian parliament. As president, all ministries involved in applying the law will be appointed by him, which can lead to a partial or total transfiguration of the legal original foundations; he could also propose, to the Brazilian Parliament, a new law or changes in the current one, which can mean, in both instances, a short-lived legal framework. Combined with the previously mentioned wide discretion concerning the regulation of the law by the ruling federal administration, this places civil society and migrants in a constant state of alert.
It is therefore not surprising that since November 2017 at least 10 claims have been issued, including three in the middle of COVID-19 pandemic, when racial and ethnic minorities in Brazil are the groups predominantly (and fatally) affected by this disease. In 2017, public defenders brought a class action due to the forced evictions of Venezuelan migrants without any prior communication, who were temporarily living in the Boa Vista bus station in the state of Roraima, the northernmost state in Brazil.
In 2018, the government of Roraima tried, at different times, to restrict migrants’ access to public services. In April, it initiated litigation in the Brazilian constitutional court – the Supreme Federal Tribunal, or STF – pleading for the temporary closure of the Brazil-Venezuela border claiming, amongst other reasons, the growth in criminality in the state, as well as the overburden of the health system and the risk of epidemics (Vedovato, 2018). In August, the state of Roraima issued decree n. 26,681-E, in which it required migrants to show their passport in order to have access to public services, even though many Venezuelan migrants enter Brazil without passports, in particular indigenous Venezuelan groups who are the most vulnerable. In response to this, the Federal Prosecutor’s Office and the Public Defender’s Office have jointly issued a class action. The initial judge, surprisingly, determined that the border should be closed. The appeal judge, Kassio Marques, after reversing the decision, took the opportunity to say that “it is frustrating to obtain so many social and legal achievements, to only then stop its applicability using litigation to do so”. The case ended up in the constitutional court, whose ministers ultimately overturned the requirement to show a passport in order to access public services.
In 2019, the Federal Prosecutors’ Office challenged the Decree n. 666/2019, issued by the then Minister of Justice Sergio Moro, as it criminalises migrants, classifying them as “dangerous people”. It also illegally enhances the power to deport, among other measures. The constitutional court has not reached judgment on this issue as of yet.
In 2020, there have been at least five claims so far. In January, Boa Vista’s city law n. 2,074/2020 was issued, which restricted migrants’ access to healthcare public services and providers; this was clearly discriminatory. Consequently, the Public Defender’s Office initiated another class action, and the Mayor of Boa Vista also brought a claim against Boa Vista’s Municipal Chambers regarding the constitutionality of the new law. This law is especially relevant in the context of the COVID-19 pandemic, as Brazil stands out as one of the countries with the greatest numbers of cases and deaths. Even mid-pandemic, and against the OHCHR’s recommendations, local governments in the Brazilian state of Roraima forcefully evicted Venezuelan migrants living in the spontaneous settlement by the river Rio Branco with no judicial authorisation, no warning and no alternative housing. As a result, another class action was brought by the Public Defenders’ Office.
In May 2020, and as a result of the health emergency caused by COVID-19, Brazil issued Decree n. 255/2020, closing its borders and establishing which persons would be exceptionally allowed in the country. The decree included migrants with some sort of legal permit in Brazil, as well as those with family in the country, with the exception of Venezuelan citizens. This clear discriminatory measure also provoked another class action .
The emergence of an extremely lethal virus and the corresponding discriminatory health policy applied by the federal government led to an intensification of the already existing economic crisis in addition to the public health crisis. Consequently, and due to social pressure, the Brazilian government allowed people resident in the country with poor socioeconomic conditions to obtain an emergency financial aid. Nevertheless, many migrants have been unable to claim this aid purely due to reasons related to their documents or migratory status.
The silence of the law that regulated the urgent financial measures in considering the details of migrants and their documents has surely contributed to the discriminatory behaviour of bank agencies. This situation is, however, not new, and could have been predicted. In 2018, the Federal Prosecutors’ Office initiated a class action to guarantee that asylum seekers could open bank accounts. What is curious about this is that there already were a great number of laws, decrees and regulations that determined asylum seekers’ right to open bank accounts and, in spite of that, these individuals still encountered a number of barriers, becoming ever more dependent on “good” bank managers. History has repeated itself, but this time round it affects not only asylum seekers but undocumented and/or irregular immigrants and those with expired documents, the majority of which are non-white and in situations of extreme socioeconomic vulnerability. Among the many conclusions to which we can come, I highlight one: the legal/formal recognition in law, although important, is insufficient to guarantee that those that inhabit the zone of non-being will also experience such rights. This issue was later raised before the judiciary by the Public Defenders’ Office, who argued that “the recognition of the right to urgent financial aid has already happened, in general, to all those who reside in the national territory and that have the eligibility requirements, and that the act to pay such aid is only the final form to implement the benefit”. Notwithstanding the importance of the discursive strength of such argument, it is important to go further and push for more sophisticated criticism. According to public defenders, the lack of a tangible right, i.e. the aid, did not mean the abstract subject had no rights whatsoever. Rather, when the same sort of situation occurs in a short period of time with similar social groups, we must show the absence of the material right, revealing the illusory protection of legal colonialism to non-white bodies (Pires, 2019), as well as law’s lack of effectiveness to those who belong in the zone of non-being. It is important to mention the name of João Manuel, an Angolan immigrant murdered in São Paulo by a Brazilian who attacked him saying “foreigners just want to get money from the government [through the financial aid], whilst Brazilians are suffering”, soon after João Manual and two immigrant friends, who were also injured in the attack, defended themselves saying such an assertion was racist. This highlights the continuing dehumanisation processes of migrant groups who inhabit the zone of non-being and demonstrates how, in Brazil, the myth of racial democracy shares intimate connections to the myth of Brazilian hospitality. On the one hand, the great amount of litigation which has occurred post-issuance of Law 13,445/2017 can be interpreted as a consequence of the legal mechanisms introduced by the new framework, which made possible and strengthened legal-political strategies by different sectors in Brazilian society. On the other hand, it could also be seen as a symptom of the permanent state of violence and indignity experienced by non-white migrant bodies.
The criminalisation of immigrants, their difficult access to public services, the stigmatisation of migrants as natural disease carriers, etc, are the many objects of the previously mentioned judicial claims. However, they do not represent anything new in the lives of non-white migrants in Brazil and are not, therefore, solely a result of Brazil’s current political moment. The same or similar situations happen over time, regardless of the political atmosphere or the legal framework in place, demonstrating that rightlessness is not an exceptional state for non-white migrants in Brazil.
It is also worrying to think of those cases that don’t even reach the judiciary. The influx of Venezuelan migrants is currently hyper-visible and human and economic resources, public or private, are currently concentrated in the north of the country where Venezuelans are mostly located, however limited those resources may be. That being said, it is also necessary to ask ourselves about the processes of erasure, silencing and constant violence experienced by other non-white migrant groups in different regions of the country, bodies incapable of producing an audible voice to the instituted powers (Mombaça, 2020). In this sense, it is important to remember Judge Kassio Marques’ remarks, when he said how frustrating it is to obtain social and legal achievements, to then see the judicial sphere being used to stop their applicability. We argue, however, that what is even more frustrating is the permanent absence of these same formal legal achievements in the realities of non-white migrant people, only realised when determined by magistrates. If the current situation in Brazil reveals an intense attack on ethnic and racial minorities in the country with a “new sadistic breath” (Flauzina and Pires, 2020), strategies in the judiciary are perhaps more important than ever for the very survival of populations that inhabit the zone of non-being. We cannot, however, forget that the violence perpetrated against these groups is constant, and instituted powers will continue to implement strategies of racial stratification which directly affect groups of non-white migrants even in periods of considerable “stability”. It is thus necessary not to generalise the great number of judicial claims as essentially positive, as an achievement of and to the migrant population, nor should we conclude that it will serve as a pedagogical mechanism for the instituted powers. We should also not distract ourselves by the bureaucratic language of international agencies concerning states’ “good practices”. The need to strive for survival in the judicial sphere is already representative of the permanent violence experienced by migrants who inhabit the zone of non-being. It is thus essential to dispute the very notions of law, state, and politics themselves (Pires, 2019), which are central tools to transform the reality for migrants. Natalia Cintra is a PhD candidate in Law PUC-Rio Research Fellow at the University of Southampton. This is an English translation of the original blog post in Portuguese, published in June 2020, with some adaptations, and thus some information might be slightly outdated. You can find the original article in Portuguese here: https://emporiododireito.com.br/leitura/colonialismo-juridico-e-a-nova-lei-de-migracao-entre-estrategias-de-sobrevivencia-e-a-protecao-ilusoria-do-direito
 Non-official translation of Estatuto do Estrangeiro, the original name of the law, in Portuguese.  Deisy Ventura argues how interests regarding migration are antagonistic: market interests, for instance, look specifically for highly qualified labour migrants; conservative politicians’ interests involve limiting legal entry to only the richest migrants, mainly investors; the federal police’s interests, aiming at criminalising migration flows; and other sectors’ interests, that she mentions sometimes even prefer an inoperative legal framework over losing power and influence. She also mentions how, on the other hand, there is an overall ‘disinterest’ of some actors, such as the Brazilian Parliament. See more at: < https://noticias.uol.com.br/opiniao/coluna/2014/05/03/politica-migratoria-brasileira-deixa-estrangeiros-em-situacao-precaria.htm?cmpid=copiaecola >  Migrant is a term henceforth cited comprising all types of migrants, temporary, undocumented, refugees, forced migrants, etc, as migrant status is not relevant to the current analysis.  According to R4V, in the end of 2019, there were almost 265,000 Venezuelan refugees and migrants in Brazil, and almost 130,000 asylum seekers.  From 2010-2018, almost 129,000 Haitian migrants entered Brazil, and 32,495 left the country, adding up to close to 96,500 Haitian residents in Brazil in 2019. See more: Cavalcanti, L; Oliveira, T.; Macedo, M., Imigração e Refúgio no Brasil. Relatório Anual 2019. Série Migrações. Observatório das Migrações Internacionais; Ministério da Justiça e Segurança Pública/ Conselho Nacional de Imigração e Coordenação Geral de Imigração Laboral. Brasília, DF: OBMigra, 2019.  The zone of being / zone of non-being divide was thought of in Frantz Fanon’s work (2008), and it is essential to understand the arguments used throughout this analysis. According to Thula Pires “the modern/colonial project mobilized the category race to institute a line that immeasurably separates two zones: the zone of the human (zone of being) and the zone of the non-human (zone of non-being). As the pattern of humanity is determined by the sovereign subject (male, white, cis/straight, Christian), it will also be this divide that will determine and define the subject of rights upon which the legal narrative will build itself” (2018, p. 66, non-official translation from Portuguese).  For instance, the new migration law introduced a new type of residency, titled “humanitarian residency/visa”, which, according to the law “is granted to the national or stateless resident of any country in a situation of imminent or severe institutional instability, armed conflict, grave calamity, of environmental disaster or grave violation of human rights or of international humanitarian law, or in other situations, according to regulation”. This new type of residency was highly welcomed by many sectors in Brazil, considering it could finally provide many migrants, from different places and situations, with a legal possibility to migrate to Brazil and seek humanitarian shelter. However, the normative resolution to the law limited the scope of such residency, saying that for it to be practically applied, there should be a joint resolution by the Ministry of Foreign Relations, the Ministry of Justice and the Ministry of Labour allowing for it to be applied to an specific situation. This overcomplicated the right and access to such residency and repeated the same mistakes of the previous legal framework, in the sense that state bureaucracies still have the discretion to decide what situations would justify the humanitarian residency. So far, the only decree issued concerning such residency refers to the situation in Haiti. Consequently, migrants of different nationalities can’t simply ask for such residency so it is decided on a case-by-case basis; three different ministries must first agree that a specific situation, in a certain country, amounts to migrants being awarded humanitarian visa.  In Brazil, after a law has been approved by the Brazilian parliament, its final text must be approved by the President of the country, who can then veto the law partially or in full.  Many vetoes have been justified based on “national sovereignty”, despite the new migration law trying to shift its foundations from sovereignty to human rights.  In the Brazilian superior tribunals as well as concerning collective rights, initiated by the so-called class actions.  In addition to the traditional action in the individual cases (civil and criminal), the Public Defender´s Office also acts in the defence of the collective rights of the population, this is the case when Public Defenders decide to initiate public interest litigation (or class actions, named by the Brazilian legislation as “Ação Civil Pública”).  ACP nº 1000677-62.2017.4.01.4200/RR  Roraima is the entrance point to many Venezuelan migrants in Brazil and is currently the state with the most expressive numbers of migrants in the country. It is one of the poorest states in Brazil, and almost half of the state’s territory are indigenous lands.  Lawsuit called Ação Civil Originária (ACO 3121).  ACP nº 2879-92.2018.4.01.4200/RR.  In Brazil, members of the STF are called ministers, not judges, even though they hold decision-making roles.  Arguição de Descumprimento de Preceito Fundamental (ADPF 619).  ACP nº 5031124-06.2020.4.04.7100/RS References: FANON, Frantz. Pele Negra, Máscaras Brancas. Salvador: Editora da UFBA, 2008. FLAUZINA, Ana; PIRES, Thula. Supremo Tribunal Federal e a naturalização da barbárie. Revista Direito e Práxis, Rio de Janeiro, Vol. 11, N.02, 2020, p. 1211-1237. Organização Internacional para as Migrações. Retrato da Governança da Migração: República Federativa do Brasil. Disponível em: < https://migrationdataportal.org/sites/default/files/2018-09/Retrato%20da%20Governan%C3%A7a%20da%20Migra%C3%A7%C3%A3o-%20Rep%C3%BAblica%20Federativa%20do%20Brasil_1.pdf>. Acesso em: 07 de junho de 2020. MOMBAÇA, Jota. Pode um cu mestiço falar? Disponível em: < https://medium.com/@jotamombaca/pode-um-cu-mestico-falar-e915ed9c61ee>. Acesso em: 05 de junho de 2020. PIRES, Thula. Direitos humanos e Améfrica Ladina: Por uma crítica amefricana ao colonialismo jurídico. In: Viveros-Vigoya, Mara (Org.). Améfrica Ladina: Vinculando Mundos y Saberes, Tejiendo esperanzas. Guadalajara: LASA, 2019. _____. Racializando o debate sobre os direitos humanos. Revista Sur, v. 15, n. 28, São Paulo, 2018, pp. 65-75. VEDOVATO, Luis. Ação Civil Originária entre Venezuela e Brasil: A Construção do Direito de Ingresso. In: BAENINGER, Rosana; JAROCHINSKI, João (Orgs). Migrações Venezuelanas. Campinas: NEPO/Unicamp, 2018.