Trends in Brazil’s Practices of Refugee Protection: Promising Inspirations for the EU?
Forum on the new EU Pact on Migration and Asylum in light of the UN GCR
Contribution by Liliana Lyra Jubilut, Professor of the Post-Graduate Program in Law of Universidade Católica de Santos and João Carlos Jarochinski Silva, Professor at Federal University of Roraima (UFRR), Posgraduate Program in Society and Borders, post-doctorate by NEPO/Unicamp
15 December 2020
Last October Brazil was elected to chair the United Nations High Commissioner for Refugees (UNHCR) Executive Committee (ExCom) in what can be seen as a culmination of positive perceptions of the country’s refugee protection practices (ACNUR 2003; Murillo Gonzales 2010; Grandi 2019). These practices encompass both traditional topics of refugee protection and durable solutions – starting with the national law on refugees in the late 1990s, followed by the proposal and implementation of resettlement in solidarity in the early 2000s, the adoption of humanitarian visas from the 2010s and, more recently, the treatment of Venezuelans arriving in the country.
At a time when the European Union (EU) is discussing refugee protection and governance (even though there are questions about the comprehensiveness and honesty of the proposals (Crisp 2020), as well as of combining migration and asylum (Gilbert 2020)), assessing existing practices that (i) are said to be based on solidarity, (ii) are perceived as responses to ‘crisis’, and, (iii) might inspire or be replicated (through the practices in themselves or from trends among them) can be relevant. This is true especially in terms of ensuring integral protection (i.e. human rights and migratory status rights) (Jubilut and Apolinário 2008a), as well as the balance between states’ interests and refugees’ rights. This text aims to aid in this endeavor, by briefly describing each of these practices and diagnosing trends in Brazil’s protection of refugees.
Brazil’s praised practices of refugee protection
The first praised Brazilian practice towards refugees was its national law on the issue – Law 9474 of 1997. It was adopted after the redemocratization of the country, in a period of increased concern for human rights (Jubilut 2006) and was seen as a model for the region (Ibid). This perception derived from the fact that it:
1) adopted, alongside the universal definition of refugee, the regional concept stemming from the Cartagena Declaration (Rodrigues 2020) thus allowing persons fleeing gross and generalized violence of human rights to be regarded as refugees,
2) created a federal organ vested with the responsibility for refugee status determination (RSD) and policies towards refugees,
3) established an administrative procedure for RSD in the country and
4) linked refugee protection and human rights (Jubilut and Zamur 2017).
Secondly, Brazil became an emerging resettlement country in the early 2000s and regionally proposed the ‘Resettlement in solidarity’ initiative (Jubilut and Carneiro 2011), which was adopted in the 2004 Mexico Declaration and Plan of Action. It encouraged countries in Latin America to create resettlement programs and to implement them based on solidarity, i.e. not focusing on the potential of refugees for integration but rather on their protection needs (Ibid). The initiative resonated in the region especially due to the Colombian crisis. Brazil has resettled mainly Colombians and Palestinians through the initiative (Jubilut and Zamur 2018). The numbers of resettled refugees in Brazil are small, and reception of new cases was almost paralyzed in recent years – even though resettlement is a key component in the “solutions” aspect of the 2018 Global Compact on Refugees (GCR) (paras. 90-93) -, but the practice has been lauded as it has opened new avenues of protection (Ibid).
In 2012, once again beginning with a regional focus, Brazil adopted humanitarian visas to assist in the protection of Haitians in light of the 2010 earthquake. This has been a third praised practice and in 2013, it was extended to persons affected by the Syrian conflict. The ad hoc measures aimed at facilitating the entry of displaced persons from these contexts into Brazil; in what could be understood as a complementary pathway to admission, an avenue of protection sought by the GCR (paras. 94-96). However, they did not secure legal migratory status for them once they were in the country, leaving them with a precarious legal basis (Jubilut, Andrade and Madureira 2016). The adoption of the new Brazilian Migration Law (Law 13 445 of 2017) has largely changed this scenario as it establishes humanitarian welcoming as a principle (Article 3, VI) and temporary humanitarian visas (Article 14, I, c) as a possibility. Moreover, since the law’s adoption, the humanitarian visa regulations seem to have built-in measures to grant legal migratory status (thus being both an entry visa and a residency visa) (Brazil 2019). The ad hoc component of the granting of humanitarian visas, however, remains.
This may be explained by the fact that geopolitics still plays a relevant role in Brazil’s practices towards refugees, which is exemplified in the fourth praisedpractice to be mentioned – the treatment of Venezuelans arriving in the country, by Operação Acolhida. Due to the increased influx of Venezuelans, the federal government established this operation in 2015, giving a leading role to the Armed Forces, aimed at ordering the border of the northern state of Roraima (the Venezuelans’ main entry point into Brazil in this current displacement). The initiative led to the creation of shelters, the enhanced presence of international organizations and NGOs in the region, the structuring of bureaucratic procedures for legal migratory status, and the novel practice of interiorização, i.e. the redistribution of the refugees to other Brazilian states. Interiorização can be perceived as an “internal resettlement” and has a dual focus – firstly, to relieve pressure on Roraima (which historically has had high levels of inequality, insufficient social and economic structures and problems in terms of access to rights and services (Jubilut and Jarochinski Silva 2020a) and secondly, to aid refugees in rebuilding their lives.
However, even though the operation has earned prizes and inspired suggestions of a similar approach in the EU (Góis 2020), certain realities have come to light, namely:
- integration remains a challenge;
- the success of relocations also needs to be explained by the limits that the geography of the northern states naturally create;
- refugee numbers in general in Brazil although high compared to the country’s history are still small in comparison to others in the region, and
- there are concerns about the respect of international norms in some practical aspects of the treatment of Venezuelans in Brazil, such as access to adequate procedures and even to refuge itself (Jarochinski Silva and Jubilut 2018; Jubilut and Jarochinski Silva 2020b).
- moreover, it seems that resettlement has been put on hold as the government has focused on Operação Acolhida (Jubilut and Zamur 2018).
Trends in Brazil’s Refugee Protection
Although praised as “good”, these practices have attracted criticism both in themselves and for not being systemic decisions but rather ad hoc polices – within a broader critique of Brazil’s non-holistic migration and refugee governance, as well as due to concerns regarding human rights and international refugee law, as outlined in the GCR’s principles (paras. 5 and 9). However, they seem to put good “bones” in place, from which improved protective structures can be built. Furthermore, most of these practices have been created in light of and as responses to significant increases in the influx of refugees into Brazil compared to the national numbers, and seem to be innovative.
In this regard there are three aspects of Brazil’s practices that can also be seen as noteworthy trends: a focus on solidarity, the implementation of multi-level partnerships, and the crucial role of cities.
Solidarity can be noted both in the ‘Resettlement in solidarity’ initiative and in the practice of interiorização, and is present both towards the states (i.e. those countries that were receiving large numbers of Colombian refugees in the first, and the state of Roraima in the latter) and to the displaced, in a dual approach. Solidarity might be a principle worthy of replicating in a regional context of developed cooperation and open internal borders such as the EU, (and also) in a scenario where trust seems to be lacking (Thym 2020).
Multi-level partnerships, which seem to be long-operating in Brazil, is another interesting practice to be considered in discussing the new EU New Pact on Migration and Asylum. Since before its national law on refugees, but with renewed strength after it, a tripartite structure of refugee protection (involving the federal government, the international community represented by UNHCR, and civil society) has been in place in Brazil (Jubilut 2006; Jubilut and Apolinário 2008b) pre-existing the approach of partnership and multi-stakeholder participation of the GCR (paras. 13, 22, 33-44, for instance).
Initially working on RSD, assistance and integration, the structure has been replicated in the resettlement in solidarity initiative, as well as in the Operação Acolhida (including interiorização). In the latter, a significant increase in the number of participating national and international civil society organizations, and of organizations and organs linked to the United Nations, has been noted. Multi-level partnerships in Brazil play a key role in integral refugee protection, as well as in delineating the issue as belonging to the country as a whole and not just of the government. This might be a positive lesson for when considering constructive and protective governance. Moreover, a new local actor has also gained relevance and added a new layer to multi-level partnerships in Brazil – i.e. cities.
Cities have become key partners in the interiorização (for example, their acceptance in receiving Venezuelans, at least in theory – given that in practice most internal redistribution seems to stem from personal or familial ties of the refugees themselves), thus allowing for the observance of two axes of multi-level partnerships in Brazil’s refugee protection: government-international community-civil society; and federal government-states-international organizations-cities.
The role of cities had already been highlighted in the ‘Resettlement in solidarity’ initiative as they had volunteered to receive the resettled refugees, took part in the selection process, and worked with civil society and UNHCR in their integration (Jubilut and Carneiro 2011). In Brazil, cities do not have the power to issue documents, which in the case of interiorização is provided prior to relocation, by a nationally accepted document – even with provisional status – (this immediate and at the point of entry issuance is a good practice that could be replicated by the EU). Cities also cannotmake decisions in terms of legal status for migrants, but, in Brazil’s federal system, the municipal governments are vested with the responsibility of the direct implementation of social programs (even some funded by the national government), therefore being essential in the issues of health, education and shelter. Thus, having this increased role of cities is a positive step toward integral protection of refugees and other migrants.
Besides solidarity, multi-level partnerships and the increased role of cities, there are three other trends that can be identified in Brazil’s refugee protection good practices and that may be interesting to assess when the EU is re-thinking its governance of migration.
First, there is the fact that, as mentioned, Brazil’s actions in migration in general and refugee protection more specifically are not as a rule systemic but rather ad hoc policies. In this sense, they differ from the EU’s New Pact that is said to posit general principles for later consensus (Betts 2020) or be a police guide (Carrera 2020). This ad hoc nature can have both positive and negative aspects, as, on the one hand, actions may be faster and grant rapid protection while more general rules and practices are being determined and can also be tailored to specific situations while political will is gathered for more systemic policies, and, on the other hand, they are impacted by political will and action.
Second, and relating to this last point, another trend in Brazil’s refugee protection is that it seems to default towards a reactive nature. On the one hand, this leads to ad hoc policies and a non-systemic architectural structure of protection; on the other, it shows that good practices can emerge in light of a crisis or emergencies, highlighting that innovative refugee protection and policies that combine states’ interests and refugees’ needs can exist.
Lastly, another relevant trend is that Brazil’s refugee protection practices by and large respect rights. Although there is always room for improvement, and there are occasional violations (that might be severe, such as in the closing of borders without exceptions for refugees (Jubilut and Jarochinski Silva 2020a), individual cases of non-refoulment in the past (Jubilut 2015), and more recently a government decision of denying claims without allowing the asylum seekers to be interviewed (DPU 2020; CNDH 2020)),they tend to be more contextual than systemic. Respecting rights is central to the political decisions of migration governance; hence this trend, as a general aspect and upheld to a great extent by the tripartite system (particularly civil society and human rights-mandated public organs), in Brazil’s refugee protection practices is noteworthy.
From the aforementioned practices regarded as “good”, to several of the identified trends, Brazil might offer inspiration for new structures of migration governance. There is room for criticism as well as for improvement, but some of the broader brushstrokes can offer positive paradigms towards enhancing protection for both refugees and other migrants in an increasingly challenging global environment.
Alto Comissariado das Nações Unidas para Refugiados (ACNUR). 2003. Refugiados no Sul da América do Sul: Argentina, Bolívia, Brasil, Chile, Paraguai e Uruguai, 2003.
Betts, Alexander. 2020. Alexander Betts discusses the EU’s ‘New Pact on Migration’ on CNN. RSC News and Media, 25 sept. 2020. Available at: <https://www.rsc.ox.ac.uk/news/alexander-betts-discusses-the-eu-new-pact-on-migration-on-cnn>.
Brasil. Ministério da Justiça e Segurança Pública. 2019. Governo brasileiro facilita visto humanitário a afetados pelo conflito na Síria. 09 oct. 2019. Available at: <https://www.justica.gov.br/news/collective-nitf-content-1570631506.17>.
Carrera, Sergio. Whose Pact? The Cognitive Dimensions of the New EU Pact on Migration and Asylum. ASILE Forum, 25 sept. 2020 Available at: <https://www.ceps.eu/download/publication/?id=30350&pdf=PI2020-22-New-EU-Pact-on-Migration-and-Asylum.pdf>.
CNDH (Conselho Nacional dos Direitos Humanos). 2020. Recomendação 17, 9 dec. 2020, through Ofício 4000/2020/CNDH/SNPG/MMDFH.
Crisp, Jeff. 2020. Disingenuous, dishonest and dangerous: the EU Pact on Migration and Asylum. Refugee Law Initiative Blog, 1 oct. 2020. Available at: <https://rli.blogs.sas.ac.uk/2020/10/01/disingenuous-dishonest-and-dangerous-the-eu-pact-on-migration-and-asylum/>.
DPU (Defensoria Pública da União). 2020. Recomendação 4094830 – DPU SP/GABDPC SP/2DRDH SP, 24 nov. 2020.
Gilbert, Geoff. 2020. The New EU Pact on Migration and Asylum and the Global Compact on Refugees and Solutions. ASILE Forum, 28 sept. 2020. Available at: <https://www.asileproject.eu/df_new-eu-pact-and-solutions-gilbert/ >.
Góis, Pedro. 2020. Precisamos de uma “Operação Acolhida” para a União Europeia?. Público, 3 mar. 2020. Available at: <https://www.publico.pt/2020/03/03/mundo/opiniao/precisamos-operacao-acolhida-uniao-europeia-1906142>.
Grandi, Filippo apud UN NEWS. 2019. UN refugee chief impressed with Brazil’s ‘exemplary’ response to plight of fleeing Venezuelans. UN News, 19 aug. 2019. Available at: <https://news.un.org/en/story/2019/08/1044431 >.
Jarochinski Silva, João Carlos; Jubilut, Liliana L. 2018. Venezuelans in Brazil: Challenges of Protection. E-International Relations, v. 1, p. 1-6, 2018.
Jubilut, Liliana L. 2006. International Refugee Law and Protection in Brazil: a model in South America?. Journal of Refugee Studies, 19, p. 22-44, 2006.
Jubilut, Liliana L. 2015. Crimes and migratory status: “Crimes” of entry and the impossibility of return of Asylum Seekers in Brazil. Working Paper presented at the Preliminary Workshop of the Project “Undesirable and Unreturnable? Policy Challenges around Excluded Asylum Seekers and Other Migrants Suspected of Serious Criminality Who Cannot be Removed” from the Refugee Law Initiative and the Center for International Criminal Justice. Available at: <https://rli.sas.ac.uk/sites/default/files/files/Liliana%20L_%20Jubilut.pdf>.
Jubilut, Liliana L.; Apolinário, Silvia M. O. S. 2008a. “A população refugiada no Brasil: em busca da proteção integral”. Universitas- Relações Internacionais, 6 (2), 2008: 9-38. (A translation is available as Refugee population in Brazil: the quest for integral protection. In: Jubilut, Liliana L. Refugee Protection in Brazil and in Latin America – Selected Essays: 91-110).
Jubilut, Liliana L.; Apolinário, Silvia Menicucci de O. S. 2008b. Refugee Status Determination in Brazil: A Tripartite Enterprise. Refuge, v. 25, p. 29-40, 2008.
Jubilut, Liliana L.; Andrade, Camila M. S. de; Madureira, André de L. 2016. “Humanitarian Visas: Brazil’s experience as a starting point for discussion”. Forced
Migration Review, 53: 76-78, 2016.
Jubilut, Liliana L.; Carneiro, Wellington P. 2011. Resettlement in Solidarity: a regional new approach towards a more humane durable solution. Refugee Survey Quarterly, 3, p. 63-86, 2011.
Jubilut, Liliana L.; Jarochinski Silva, João Carlos. 2020a. COVID-19 at the Brazil-Venezuela borders: the good, the bad and the ugly. OpenDemocracy, 18 jun. 2020. Available at: <https://www.opendemocracy.net/en/pandemic-border/covid-19-brazil-venezuela-borders-good-bad-and-ugly/>.
Jubilut, Liliana L.; Jarochinski Silva, João Carlos. 2020b. Group recognition of Venezuelans in Brazil: an adequate new model?. Forced Migration Review, 65, p. 42-44, 2020.
Jubilut, L. L; Zamur, Andrea C. G. 2017. Direito Internacional dos Refugiados e Direito Internacional dos Direitos Humanos. In: JUBILUT, Liliana Lyra; GODOY, Gabriel Gualano de (Org.). Refúgio no Brasil: Comentários à Lei 9.474/97. São Paulo: Quartier Latin/ACNUR, 2017. p. 439-460.
Jubilut, Liliana L.; Zamur, Andrea C. G. 2018. Brazil’s Refugee Resettlement: Power, Humanitarianism and Regional Leadership. In: Adèle Garnier; Liliana Lyra Jubilut; Kristin Bergtora Sandvik. (Org.). Refugee Resettlement: Power, Politics, and Humanitarian Governance. New York/Oxford: Berghahn Books, 2018. p. 70-91.
Murillo González, Juan Carlos. 2010. A importância da lei brasileira de refúgio e suas contribuições regionais. In: Barreto, Luiz Paulo Teles Ferreira (Org.). Refúgio no Brasil: a proteção brasileira aos refugiados e seu impacto nas Américas. Brasília: ACNUR, Ministério da Justiça, 2010.
Rodrigues, Gilberto. 2020. South America and the Cartagena Regime: A comprehensive approach to forced migration responses. ASILE Forum, 10 nov. 2020. Available at: < https://www.asileproject.eu/south-america-and-the-cartagena-regime/>.
Thym, Daniel. 2020. Secondary Movements: Overcoming the Lack of Trust among the Member States?. Odysseus Network Blog, 29 oct. 2020. Available at: <http://eumigrationlawblog.eu/secondary-movements-overcoming-the-lack-of-trust-among-the-member-states/>.