By Laura García-Juan
Since Brazil’s new Migration Act of May 2017 and Decree 9199 regulating its implementation of 21 November 2017, the flow of Venezuelans to the border state of Roraima in Brazil has been continual. The new Law does not specify the requirements for a humanitarian residence permit, but leaves the question to be decided at a later date. Accordingly, on 16 February 2018, three acts of the executive branch were published in the Official Gazette of the Union of Brazil. These were supposed to remedy this situation but they have further diminished the hopes of more than 40,000 Venezuelans in the Roraima capital of Boa Vista.
The three acts are as follows:
- Provisional measure No. 820, which provides for emergency assistance measures for the reception of people in a vulnerable situation deriving from the migratory flow caused by the Venezuelan crisis;
- Decree No. 9285, which recognizes vulnerability of migrants fleeing the humanitarian crisis in Venezuela;
- Decree No. 9286, which defines the composition, competencies and operating rules of the Federal Committee of Emergency Assistance for the reception of vulnerable migrants.
A brief analysis of these texts leads those with knowledge of Brazilian migration law and regulatory compliance to consider the following scenarios: either these are mere statements of good intentions, and they will not be effectively developed, or Brazil is about to become the world’s leading power in terms of human rights guarantees and protection for migrants.
This second scenario is difficult to imagine, given that the Migration Act has been devoured by an implementing Decree that contradicts the very law that it regulates. Some provisions contained in Decree 9199 seriously affect Brazilian migration governance, since they imply involvement from the judicial authorities along with the ministerial, police and intelligence actors. This means, for example, that the position taken by the courts will be decisive in a migration system that now allows international immigrants with a pending expulsion order to be imprisoned.
Returning to the provisions published on 16 February, the lack of precision in the statements and definitions leaves the construction of migration governance in Brazil up in the air. There is no compelling political, economic or social justification that would support the use in the three texts of the term “migratory flows”, a generic expression that creates uncertainty. The same can be said of the fact that all three indicate that the target group of the provisional measures are “the people in a situation of vulnerability deriving from the migratory flow caused by the humanitarian crisis”. No reference is made in any of the three cases to international migrants, refugees, internally displaced persons, asylum seekers or any other group requiring international protection. None of the texts distinguishes between forced or voluntary migrants, for, say, economic, work, family, education or health reasons. If we look at the meaning of the phrases in quotation marks, these definitions include all persons who are in any of the aforementioned situations. All of them, without distinction.
Meanwhile, the objective of the assistance measures (at the federal, district and municipal levels) is “to articulate integrated actions aimed at people, nationals or foreigners, that are part of this migratory flow”. This expands ad infinitum the number of individuals that the corresponding government authorities should take care of, and generates an uncertainty that could lead to chaos. Besides, it is difficult to demonstrate reliably whether someone (national or foreign national) is part of the migratory flow from Venezuela to Roraima or simply “passing through”.
In addition, the definitions given for “situation of vulnerability”, “humanitarian crisis” and “social protection” are too broad. This means that virtually anyone might think that they will be accepted and included in the assistance programs. In addition, these programs extend to public policies related to social protection, health care, educational activities, professional training and qualification, and human rights guarantees, among others.
All economic, political and social indicators point to the fact that the Venezuelan situation is not temporary, but that it will continue indefinitely. President Temer’s great mistake has been, as the main architect and the person ultimately responsible for migration governance in Brazil, to treat the migratory flows of Venezuelans as something transitory. This failure to get to the heart of the matter from the outset undermines the whole initiative. Clear evidence of this is the fact that neither provisional measure No. 820 nor Decrees 9285 and 9286 include the allocation of economic resources. On the contrary, the effective implementation of the planned actions depends on an available annual budget and finances, which raises still more questions. Where will this budget come from? Which department will be responsible for each budget item? How will the competencies be distributed? How will the priorities be set?
This idea that the migratory flows are a temporary situation, analysed together with other factors, leads us to the following conclusions:
First, this flow from Venezuela has lasted for several years already, yet none of the texts establishes conditions, additional criteria or deadlines for entering Roraima or for leaving Venezuela. A realistic norm should limit the reception measures to people who meet certain verifiable requirements. Otherwise, it could boost the number of men and women who believe that they are entitled to such assistance, potentially triggering competition for resources, xenophobic attitudes and social upheaval.
Second, allegations of human rights violations must be determined by a judge through a guilty verdict, and cannot hinge on an arbitrary decision of a public official or an NGO employee. Thus, the broad recognition of the situation of vulnerability contained in Decree 9285 is not a trivial issue, since it is a legal act that activates certain “rules” of international human-rights law. This recognition places Brazil in the spotlight of the international organizations that will monitor compliance.
In view of these considerations, it seems that the provisional measures announced are mere declarations of good intentions which will not be effectively developed. And this brings into question the very meaning of migration governance in Brazil.
The EUI, RSCAS and MPC are not responsible for the opinion expressed by the author(s). Furthermore, the views expressed in this publication cannot in any circumstances be regarded as the official position of the European Union.
About the author
Laura García-Juan holds a Ph.D. in Human Rights, Democracy and International Justice from the Human Rights Institute of the University of Valencia (Spain), and a Masters in Development Cooperation. She is a jurist and a researcher in human rights, public policy and European Union Migration Law. She has collaborated with the University of Valencia and other Spanish higher education institutions, and exercised as a lawyer specializing in immigration law at her own law firm (1995-2015). She is currently Associate Professor and Head of Research at the Faculty of Law and Political Science of the Universidad Pontificia Bolivariana in Medellín (Colombia).