New Migration Law in Brazil: how does the statute of foreigners work?

The new Migration Law in Brazil was enacted in 2017, replacing the Foreigner Statute (Law No. 6.815/80), to modernize the regulation of immigration in Brazil, guaranteeing the protection and defense of the rights of immigrants.

Some of the main changes include extending the validity of visas, the possibility of renewing visas and work permits, and the inclusion of measures to protect victims of human trafficking and labor exploitation.

In addition, the new law establishes the creation of a national registration system for immigrants, facilitating the process of regularization and integration of foreigners in the country.

In this way, many rules changed, and there was a promotion of immigrants’ rights that were not previously based on the old Statute.

See now in this text what has changed and what are the rights of foreigners in Brazil!

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The Old Statute

At first, the former 1980 Foreigner Statute was developed during the Military Dictatorship and was based on national security. Incidentally, it also had a criminalizing tone towards foreigners and allowed deportation on grounds of “national interest”.

However, the idea of ​​“national interest” is very relative, not very specific, and was added to other rules that are now very outdated.

In this way, refugees and asylum seekers did not have national protection and could not count on rights while they remained in Brazil. The new law modified these errors.

New Migration Law in Brazil: What has changed?

The New Migration Law provided a major change in how the Brazilian Government sees foreigner who decides to come to Brazil.

In summary, today the law focuses on Human Rights and the establishment of rights for foreigners by the New Law. Therefore, the Brazilian Government’s view has changed, compared to the former Statute of foreigners.

The 1st Article of the New Law already demonstrates the tone in which it was made:

This Law provides for the rights and duties of migrants and visitors, regulates their entry and stay in the country, and establishes principles and guidelines for public policies for emigrants.

In addition, the New Migration Law in Brazil follows some principles and guidelines that reinforce its modernization, such as:

• universality of human rights;
• repudiation and prevention of xenophobia, racism, and any form of discrimination;
• non-criminalization of migration;
• non-discrimination based on how the person was admitted to the national territory;
• promotion of regular entry and document regularization;
• humanitarian reception;
• economic, tourist, social, cultural, sporting, scientific, and technological development in Brazil;
• guarantee of the right to family reunion;
• equal treatment and opportunity for migrants and their families;
• social, labor, and productive inclusion of migrants through public policies;
• equal and free access of migrants to services, programs, and social benefits;
• promotion and dissemination of migrant rights, freedoms, guarantees, and obligations;
• social dialogue in the formulation and promotion of citizen participation by migrants;
• strengthening the economic, political, social, and cultural integration of the peoples of Latin America;
• international cooperation with States of origin;
• integration and development of border regions;
• comprehensive protection and attention to the best interests of migrant children and adolescents;
• compliance with the provisions of the treaty;
• protection for Brazilians abroad;
• migration and human development, as inalienable rights for all;
• promotion of academic recognition and professional practice in Brazil;
• repudiation of practices of collective expulsion or deportation.

Therefore, we can see the initiative of the Brazilian Government in drafting laws that expand the rights of foreigners, validate human rights, and welcome any migrant who seeks Brazil.

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New Migration Law in Brazil: Facilitated rights

Foreigners who chose Brazil are now able to work, reside, and raise a family in the country, with full inclusion of non-Brazilians. Something that seemed more difficult with the old Foreigner Statute.

Therefore, migrants have the right to equal access to public policies that were previously only intended for Brazilians.

Likewise, migrants are allowed to participate in trade unions and receive legal rights free of charge, if insufficient financial resources are proven.

Furthermore, the foreigner is entitled to a regular stay in Brazil, especially those who are socially vulnerable and cannot afford any fees for issuing documents, for example.

New Migration Law in Brazil: Easier Documentation

Another important feature of the New Migration Law is that it has become easier for immigrants, compared to the old Foreigner Statute, to obtain the documentation they need. This was due to several measures included in the New Law, such as:

• Simplified process: The New Law established a more simplified process for obtaining documents, such as visas, and work and residence permits. In addition, the Law also provides for the possibility of renewing visas, which facilitates the permanence of immigrants in the country;
• De-bureaucratization: from the point of view of the International Organization for Migration (IOM), there was a de-bureaucratization of “migratory avenues”, the paths that foreigners had to take to regularly enter a country. The new Law extinguishes the permanent visa but validates the temporary one, which facilitates the entry and legal stay of the immigrant.
• Access to public services: The Law also guarantees immigrants access to public services, such as health, education, and security, without distinction between Brazilians and foreigners;
• Labor rights: The Law allows immigrants the labor rights provided in Brazilian legislation, including wages, overtime, and vacations, among others;
• Priority service: The New Law provides priority service to immigrants in vulnerable situations, such as victims of human trafficking and labor exploitation, in addition to foreigners who cannot afford to pay fees for issuing documents.

Thus, all these measures were implemented to make the process of obtaining documents and rights more accessible and efficient for immigrants, promoting their integration and well-being in the country.

New Migration Law: A human being with rights and obligations in Brazil

With the New Migration Law, the foreigner lost the image of threat (which the old Statute of the foreigner promoted) and was elevated to a condition of a human being with civil rights and obligations.

Furthermore, the Article 4 of the law is clear in guaranteeing the migrant:

Migrants are guaranteed in the national territory, on an equal basis with nationals, the inviolability of the right to life, freedom, equality, security and property.

As a result, the following rights are guaranteed:

• civil, social, cultural, and economic freedoms;
• freedom of movement in national territory;
• a family reunion of the migrant with his/her spouse or partner and their children, relatives, and dependents;
• protection measures for victims and witnesses of crimes;
• transfer funds arising from your income and personal savings to another country;
• assembly for peaceful purposes;
• association, including trade unions, for lawful purposes;
• access to public health and social assistance services and social security;
• broad access to justice and free comprehensive legal assistance;
• right to public education;
• guarantee of compliance with legal and contractual labor obligations;
• exemption from the fees dealt with in this Law, upon declaration of economic hypo sufficiency;
• right of access to information and guarantee of confidentiality regarding the migrant’s data;
• leave, remain, and re-enter national territory;
• right of immigrants to be informed about the guarantees they are entitled to for migratory regularization.

Types of Brazilian Visas according to the New Migration Law

Brazilian visas are documents required by the Brazilian government to enter national territory. Brazil offers several visas and sub-categories that may adjust to your specific situation.

Therefore, the main categories of visas specified in the New Migration Law are:

• visiting;
• temporary;
• diplomatic;
• official;
• courtesy.

As explained, these main visas are divided into subcategories to better serve your type of stay on Brazil.

In addition, countries belonging to MERCOSUR and on the border with Brazil are exempt from visit visas and can enter the country only with their identity document.

The list of main temporary visas is (click on the underline to read details):

• Family reunion;
• Foreign Investor;
• Pensioner;
• Digital Nomad;
• Retiree;
• By marriage;
• By work.

Visit Visa

The Brazilian visit visa can be considered one of the subdivisions. Thus, it’s possible to come to Brazil with different purposes for a temporary stay of, in general, up to 90 days:

• tourism;
• business;
• traffic;
• artistic or sporting activities with a fixed-term contract.

Brazilian visas for humanitarian reasons and violation of human rights

At first, the humanitarian reception visa contemplates foreign people at risk and guarantees their stay in Brazil.

Thus, foreigners who are at risk can migrate to Brazil to seek protection and assistance.

It’s determined that:

The temporary visa for humanitarian reception may be granted to a stateless person or national of any country in a situation of serious or imminent institutional instability, armed conflict, major calamity, environmental disaster or serious violation of human rights or international law, humanitarian, or in other hypotheses, in the form of regulation.

In other words, those people who are in situations of risk or vulnerability in their countries of origin and need protection and humanitarian reception in Brazil are entitled to this type of visa. The purpose of this visa is to guarantee the right to life and physical integrity of these people, as well as to promote their integration and well-being in the country.

Thus, on Brazilian soil, interested parties may request refuge and protection to be able to establish themselves safely in Brazil.

Stateless person protection and political asylum

The New Migration Law aims to protect citizens of the world who are stateless. In other words, they have no ties to any country, and political asylum, which can be granted if the foreigner meets certain requirements. So, another change compared to the former Foreigner Statute.

Also, the stateless foreigner can opt for Brazilian naturalization, to consolidate his belonging to a new nation, as well as establish residence in Brazil, since with naturalization, the Residence Permit remains definitive.

To guarantee political asylum, the Migration Law states, in short, the protection of foreigners who have not committed the crime of:

• Genocide: deliberate extermination of a community, ethnic, racial, or religious group;
• Crime against humanity: Crimes intended against humanity are widespread or systematic attacks against a civilian population;
• War crime: violation of human rights during a conflict;
• Or crime of aggression: according to the Rome Statute, the use of armed force by a State against the sovereignty, political independence, or territorial integrity of another State.

Residence Permit

Just to illustrate, the Residence Permit is permission granted by the Brazilian Government to foreigners who wish to live in Brazil temporarily or permanently.

You should understand that there are several justifications for staying to obtain authorization, for example:

• research, teaching, or academic extension;
• health treatment;
• humanitarian reception;
• study;
• work;
• vacation-work;
• the practice of religious activity or voluntary service;
• investment or activity with economic, social, scientific, technological, or cultural relevance;
• family reunion.

Thus, a foreign person who fits into any of the following situations can obtain a Residence Permit in Brazil. The situations are:

• free circulation;
• have a job offer;
• has already possessed Brazilian nationality and does not wish to or does not meet the requirements to obtain it;
• the beneficiary of refuge, asylum, or stateless person protection;
• is a child or adolescent who is a national of another country or is stateless, unaccompanied, or abandoned, who is on Brazilian borders or in national territory;
• has been a victim of human trafficking, slave labor, or violation of rights due to their migratory status;
• is on a provisional release or serving a sentence in Brazil.

Family Reunion

First of all, the New Law promises the Family Reunion (different from the old Statute of the foreigner), including for refugees, it must be:

• spouse or partner, without any discrimination;
• child of an immigrant beneficiary of a residence permit, or who has a Brazilian child or an immigrant child beneficiary of a residence permit;
• ascendant, descendant up to the second degree, or sibling of a Brazilian or an immigrant with a residence permit; or
• who has a Brazilian under his guardianship or guardianship.

Brazilian naturalization

Namely, the foreigner who already lives in Brazil regularly has the option of becoming a  Brazilian citizen. Acquire the condition of a naturalized Brazilian and have rights like any other Brazilian citizen under the Brazilian Constitution.

However, there are different types of naturalization (click on the underline to read the rule):

• ordinary;
• extraordinary;
• special; or
• provisional.

In most cases, this will be the ordinary naturalization option.

Deportation and Extradition

In principle, according to the New Migration Law, the foreigner who is irregular in Brazil has full defense before any decision is taken by the Brazilian Government. As such, this includes deportation and extradition.

For example, as established in the 1988 Constitution, migrants cannot be extradited based on political opinion.

Impediment to return

Even so, if the foreign person has previously been expelled from Brazil, their return is prohibited, through:

• previously expelled from the country, while the effects of the expulsion are in force;
• convicted or being prosecuted for an act of terrorism or the crime of genocide, crime against humanity, war crime, or crime of aggression;
• convicted or responding to proceedings in another country for an intentional crime;
• whose name is included in a list of restrictions by court order or commitment assumed by Brazil before an international organization;
• if presents a travel document that:
  a) is not valid for Brazil;
  b) has expired; or
  c) has erasure or evidence of forgery.

Impediment to Return for Life

In fact, in the former Foreigner Statute, the Impediment of Return was perpetual, that is, forever.

However, with the new Migration Law of 2017, it was agreed that the foreigner is expelled and prevented from returning to Brazil for twice the period of his sentence.

Therefore, if the immigrant commits the crimes listed above, the period of impediment to return to Brazil will be twice as long as the sentence.

Know the best strategy for your case

In summary, we can say that, even with the advances in the Law, for foreigners to enter or live in Brazil, they need to take some precautions.

Firstly, the issue of impediments and prohibitions that Brazil has delimited. That is, you may have rights, but you also have responsibilities.

Secondly, you need to know the best visa, authorization, or naturalization according to your need, your desire, and your ability.

For example, some visas will require a contract with a Brazilian company and others with a foreign company. Some will require proof of financial funds and others proof of a relationship with a person who is already in Brazil.

Therefore, you must understand the best strategy for your case.

And as a bonus, we can also recommend that you get to know the different regions of Brazil, researching a little about each one of them, to find out which one best fits what you want to live in.