Migrants or refugees? ‘Let’s do both’. Brazil’s response to Venezuelan displacement challenges legal definitions

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As Venezuelan large-scale displacement worsened and some South American countries adopted more restrictive policies, only one country in the region recognised large numbers of Venezuelans as refugees and, at the same time, adopted a longer-term regularisation policy based on a regional agreement. That country is Brazil, which is not governed by a leftist political party whose foreign policy agenda is driven by the promotion of human rights, as happened in South America during the ‘pink tide’ of left-wing governments who liberalised migration policies. Instead, Brazil’s far right President Jair Bolsonaro has been repeatedly hostile towards migrants and refugees, yet Brazil has the highest ‘regularisation’ rate of Venezuelan nationals in South America (74% against an average rate below 50% in the rest of the countries). These ‘regularisation’ routes – by providing residence and migratory status, without making any distinction between these legal categories- can be seen as a way for the Brazilian state to address the issue of irregularity and increase its control over its territory and population.

Venezuela is the source of the largest displacement crisis in South American history with estimates that around 5.6 million people, 19% of its population, left the country in the last six years. The vast majority of these Venezuelan nationals moved to other South American countries. Brazil is the fifth-largest receiving country of Venezuelan nationals and the second-largest recipient of asylum requests in South America after Peru, with around 90,000 pending asylum requests and 48,000 recognised Venezuelan refugees. This could partly explain why Brazil has a high recognition rate. As the number of asylum requests is high, so is the recognition rate. But, if this was the case, Peru would have also recognised significant numbers of Venezuelans as refugees, but has only given refugee status to 3,200 individuals. What makes Brazil different?

By 2017, when Venezuelans started arriving in large numbers in Brazil, the government decided to extend the Mercosur Residency Agreement (MRA) to Venezuelan nationals, given that Venezuela had not ratified the Agreement. The MRA provides a two-year residency permit which can eventually become permanent while providing access to a wide set of rights, almost equal to Brazilian nationals. Similar to its neighbours, Brazil was initially reluctant to provide refugee status, so the asylum requests piled up, generating an enormous backlog. The group recognition of 47,000 Venezuelans as refugees between 2019 and 2020 based on the provisions of the Cartagena Declaration of 1984 was mainly a state response to this backlog and was heavily influenced by UNHCR and civil society, both of whom play a crucial role in the refugee recognition process within the National Refugee Council (CONARE). This recognition, combined with the MRA migratory status, resulted in the highest regularisation rate in South America.

Research we have conducted at the MPC within the framework of the ASILE project has shown that Brazilian authorities grant refugee and/or migratory status to Venezuelan nationals regardless of the reasons why these people left their country. As a high-level official of Brazil told us, Venezuelans can ‘choose’ between migratory and refugee status: ‘… together with the policy, there is also refugee status for Venezuelans. Therefore, they can choose if they want to live here in Brazil as refugees or as residents. The choice is theirs. They know what’s best for them.’ (interview, January 2021). From the perspective of the policy-implementing actors, this is because refugee and migratory status provide access to a similar (and wide) set of rights:

In terms of access to rights, the rights of a migrant or a refugee, or even an asylum seeker, in Brazil, they are very, very similar. So, even an asylum seeker or a resident, they’ll have access to public services, like health system, schools, they can legally work. (interview, December 2020)

These similarities between both ‘categories’ mean that, in practice, implementing actors do not make a difference between ‘migrant’ and ‘refugee’: ‘We always have that debate, what is a ‘refugee’ and what is a ‘migrant’. In practice, for the public service, it makes no difference. Because what matters for the public service, health or social assistance, is that the person has a personal identification’. (interview with IO official, May 2021).

The main legal difference is that migrants can be legally deported while refugees cannot:

Of course, as a refugee, you have more guarantees against refoulement. Let’s say that, in one year, President Bolsonaro decides that these Venezuelans are not welcome anymore, they can easily suspend this law that allows Venezuelans to apply for residency and they can, in the political decision, not provide permanent residency for these people. (official, January 2021)

Another Brazilian government official added that the ‘choice’ between migratory and refugee status is frequently based on the fact that many Venezuelan nationals do not have the required documentation to apply for migratory status, so they apply for refugee status instead:

A Venezuelan national who cannot complete the requirements for a migratory residence has refuge as an alternative for entering and staying in Brazil. We recognise that, under the Cartagena Declaration, these persons are refugees. And if we recognise them as such, there is no reason to treat the persons who apply for a migratory residence in a different way (official of Brazil, January 2021)

However, one of the shortcomings of applying for refugee status is that the process of recognition can take very long, so migrants who have the documents and economic means to apply for residence can do so ‘because it’s faster’ (official of Brazil, February 2021), but ‘it is expensive because for the Venezuelans who are arriving now any tax is too expensive’ (Civil Society representative, December 2020). One of the main motivations for Venezuelan nationals who can actually ‘choose’ which regularisation status they want to apply for is that, by having a migratory status, they can travel to back to Venezuela in case that they wish to do so: ‘some of them [Venezuelan nationals] reported that a temporary residence makes it easier for them to have access to work… also, [they apply for residency] because, when borders are open, they can go back to Venezuela, so they also have the option of [doing] frequent circular migration, which is something that has always existed [at the border between Brazil and Venezuela]’. (IO official, July 2021).

From the perspective of the state, having two different ‘venues’ for regularisation is a pragmatic choice, aimed at increasing its capacity to provide access to a regular status. To increase this capacity and to speed up the process, the CONARE, which is the institution who has decisional power over the asylum requests, developed a digital system. As one of our interviewees put it:

For Venezuelans, if you fulfil certain requirements, which were decided by the Brazilian CONARE, you don’t need to have a personal interview. [The CONARE] can analyse these requirements in their database, and then they recognise the person. It’s much easier for the Brazilian state if you are a resident and you want to go to Venezuela, for instance, to bring food to your family. As a refugee, you need to inform the Brazilian CONARE that you’re going to Venezuela, and how long are you going to stay there – and you can even lose your status if you stay there for more than three months. So, in operational terms, for the Federal Police it is much easier to have residents than asylum seekers. So, they even encourage people to apply for a residence. (IO official, December 2020)

Those responsible for policy implementation are also aware that the lack of distinction between migrants and refugees could endanger the meaning of ‘protection’. As stated by one of our interviewees:

The status of asylum in Brazil is every day more and more of an equivalent of an authorisation for residence than a protective [legal] status. So this protective approach is not evident to me. Well, [asylum] is an empty concept, because today is one more form of regularisation. (official of Brazil, January 2021)

Our evidence shows that Brazil grants both refugee and migratory status in order to have more venues, or options, for increasing access to a regular status. From the perspective of the Brazilian state, this increases its capacity to process regularisation requests, providing documentation to the increasing numbers of newly arrived residents and eventually enhances the state’s control of its territory and population. This means that a far right, nationalist president was hardly driven by ‘humanitarian’ concerns. The Brazilian response to Venezuelan large-scale displacement is far more complex, and is strongly influenced by concerns that are more closely related to the capacities of the Brazilian state and to intra-bureaucratic dynamics.

The Brazilian response to Venezuelan displacement openly challenges the sharp discursive, political and legal distinctions between migrant and refugee that prevail in the Global North, especially in Europe. This helps us to reflect about the political and social effects of labelling people into dichotomous categories of persons whose mobility is motivated by extremely different reasons. The Venezuelan ‘crisis’ and South American responses to it are illustrative of the complexities that motivate human mobility and of the multiplicity of responses that can be adopted beyond the refugee/migrant binary.