Brazil: Resident status of Haitian citizens in Haiti, including their rights and responsibilities (2010-September 2017)

Research Directorate, Immigration and Refugee Board of Canada, Ottawa

1. Status of Haitian Asylum Seekers in Brazil

Sources from 2016 state that the number of Haitian nationals who had migrated to Brazil since 2012 was estimated at 85,000 (US 3 Mar. 2017, 11) and over 85,000 since the 2010 earthquake (Jubilut et al. Oct. 2016, 77). Sources report that most of the Haitians who arrived in Brazil [from 2010 to 2012 (IJDH and NWIRP 3 Apr. 2017, 1) or from January 2010 to February 2011 (IPPDH and IOM Aug. 2017, 64)] claimed refugee status (IJDH and NWIRP 3 Apr. 2017, 1; IPPDH and OIM Aug. 2017, 64).

Article 21 of Law No. 9,474 of 22 July 1997, on refugee status, states the following concerning temporary residence in Brazil:

[translation]

Art. 21. After the application is submitted, the Federal Police Department will issue a receipt to the applicant and their family group located in the national territory, and consequently, they will have the right to stay until the final decision.

§ 1° Having issued the receipt to the refugee, the Ministry of Labour may issue them the temporary permit in order to work in Brazil.

§ 2° Minors, under the age of 14, will be included in the receipt issued to the refugees. (Brazil 1997)

A document dated 3 April 2017, on Haitians in Brazil and prepared by Norwest Immigrant Rights Project (NWIRP), an organization that defends the rights of immigrants, among others, by providing legal services and community education (NWIRP n.d.), in partnership with the Institute for Justice & Democracy in Haiti (IJDH), a non-profit organization in the United States that supports "the Haitian people in their struggle to achieve universal human rights, access to a just legal system, social justice, a society without violence and the right to participate fully in choosing their government" (IJDH n.d.), explains that, according to article 21 of Law No. 9,474, a migrant who applies for refugee status in Brazil will receive a provisional ID document, a temporary work permit, and a taxpayer ID number (Cadastro de Pessoas Fisicas, CPF) (IJDH and NWIRP 3 Apr. 2017, 1). Similarly, an article titled Haitian Migration in Brazil: Destination Study Results (La migration haïtienne au Brésil : résultat de l'étude à la destination[1]), published in July 2014 in the Cahiers migratoires n° 6 of the International Organization for Migration (IOM), states that applying for asylum in Brazil enables applicants to obtain a work permit and a CPF [2] (Fernandes and de Castro July 2014, 53).

Sources state that the National Committee for Refugees (Comitê Nacional para os Refugiados, CONARE), the Brazilian organization responsible for assessing and deciding on asylum claims and providing protection and assistance to asylum seekers (Brazil n.d.a), refused to grant Haitians refugee status (IJDH and NWIRP 3 Apr. 2017, 1; IPPDH and IOM Aug. 2017, 64), rendering the situation of Haitians in Brazil and of Haitians who had arrived at the Brazilian border [translation] "irregular" (IPPDH and IOM Aug.2017, 65). According to a 2016 article in Revue Migrations Forcées (RMF), published by the Refugee Studies Centre at the University of Oxford (RMF n.d.), the Brazilian government does not consider environment crises a valid reason for granting refugee status (Jubilut et al. Oct. 2016, 77).

According to sources, under Recommended Resolution No. 08/06 [of 19 December 2006 (de Souza Rodrigues 2016, 173)], the National Immigration Council of Brazil (Conselho Nacional de Imigração, CNIg) was able to consider the asylum claims of Haitian nationals and allow them to stay in the country (IPPDH and IOM Aug. 2017, 64; de Souza Rodrigues 2016, 173), by granting them [translation] "authorization to stay in Brazil for humanitarian reasons" (IPPDH and IOM Aug. 2017, 64). A report on Haitian migration to Brazil, prepared in November 2014 by Carlos Nieto, holder of a doctorate in social and political sciences at the Université de Louvain in Belgium and consultant for OIM (La RED n.d.), states that the Resolution No. 08/06 enabled Haitians to obtain [translation] "permanent residence [in Brazil] for humanitarian reasons" (Nieto Nov. 2014, 76).

An article published in January 2014 [3] on the website of the Instituto Migrações e Direitos Humanos (IMDH) (Institute of Migration and Human rights), a non-profit organization located in Brazil whose mission is to promote recognition of citizenship for migrants and refugees and their rights and inclusion in public policies (IMDH 6 Jan. 2014), states that, during a plenary meeting in March 2011, the CNIg granted, under Resolution 08/06, [translation] "permanent residence in Brazil for humanitarian reasons" to 199 Haitian nationals (IMDH 20 Jan. 2014). According to that same source, the applications for refugee status presented to CONARE by Haitians continued to be sent to CNIg and, still based on Resolution No. 08/06, in September 2011, CNIg had granted [translation] "authorization for permanent residence" to more than 600 Haitians (IMDH 20 Jan. 2014).

Recommended Resolution No. 08/06 provides as follows:

[translation]

RECOMMENDED RESOLUTION N° 8 of 19 December 2006

To resolve on applications for refugee status to the National Committee of refugees (CONARE), and at the latter's discretion, on the possibility of being examined by the National Immigration Council (CNIg) as special situations.

MINISTRY OF LABOUR AND EMPLOYMENT

NATIONAL IMMIGRATION COUNCIL

The NATIONAL IMMIGRATION COUNCIL created by Law 8,490 of 19 November 1992, organized by Law No. 10,683 of 28 May 2003, under the authority granted to it by Decree No. 840 of 22 June 1993,

DECIDES:

Article 1. To recommend to the National Committee of Refugees (CONARE), organization attached to the Ministry of Justice, that the admissible applications for refugee status be sent to the National Immigration Council (CNIg) and, at the discretion of CONARE, that foreign nationals be granted the opportunity to remain in the national territory for humanitarian reasons.

Sole paragraph. The situation of staying in the country of foreign nationals, whose application was sent by CONARE to CNIg, is examined under Normative Resolution No. 27 of 25 November 1998, which resolves on missing and/or special cases.

Article 2. The present resolution becomes effective on the date of its publication.

NILTON FREITAS

Current Chair, National Immigration Council. (Brazil 2006, emphasis in the original)

Normative Resolution No. 27, mentioned in the Recommended Resolution No. 08/06, provides as follows:

[translation]

Normative Resolution No. 27 of 25 November 1998

[…]

Art. 01 Special cases and other contingencies that are not set out in the legislation will be subjected to the National Immigration Council, on a case-by-case basis.

First paragraph. Special cases will refer to cases that, although they are not expressly defined in the resolutions of the National Immigration Council, will have elements that enable them to be considered satisfactory for obtaining the visa or permanency.

Second paragraph. The other contingencies not set out in the legislation will refer to conditions that are not described in the resolutions of the National Immigration Council.

Art. 02 For the assessment of applications based on this normative resolution, the immigration criteria, the principles and the reasons, as set out in the concerned legislation, must be respected.

Art. 03 The decision based on the above constitutes neither evocable precedents nor cases of jurisprudence for decisions from other organizations or agencies.

Art. 04 Resolution No. 32, of 19 October 1994, is therefore revoked.

Art. 05 This normative resolution will be effective as of its date of publication.

JOÃO CARLOS ALEXIM

Chair, National Immigration Council. (Brazil 1998)

An undated document prepared by the CNIg, the Ministry of Labour in Brazil (Ministério de Trabalho) and the IOM, on Haitian immigration in Brazil, states that 51,124 [translation] "authorizations for residence" were issued to Haitian nationals from January 2012 to May 2016 under Normative Resolution No. 27 (Brazil and IOM n.d., 1).

1.1 Normative Resolutions Adopted from January 2012 to September 2016

Sources state that in January 2012 the CNIg adopted Normative Resolution No. 97 to grant for a period of five years, to Haitian nationals [whose asylum claim was rejected (Fernandes and de Castro July 2014, 53)], [translation] "a permanent humanitarian visa" (Fernandes and de Castro July 2014, 53) or a [translation] "'permanent' visa […] for 'humanitarian reasons'" [4] (IJDH and NWIRP 3 Apr. 2017, 2). Normative Resolution No. 97 of January 2012 provides the following:

[translation]

CNIg Normative Resolution No. 97 of 12/01/2012

Resolve on the issuance of a permanent visa to Haitian nationals under article 16 of Law No. 6,815 of 19 Aug. 1980.

The National Immigration Council, created under Law No. 6,815 of 19 August 1980, and organized by Law No. 10,683 of 28 May 2003, under the authority granted to it by Decree No. 840 of 22 June 1993

States:

Article 1. A permanent visa set out in article 16 of Law No. 16 of Law No. 6,815 of 19 August 1980 may be granted to a Haitian national for humanitarian reasons, for a duration of five (5) years under article 18 of that same law, a circumstance that must be noted on the incumbent's ID card.

Sole paragraph. For the purpose of this resolution, humanitarian reasons are considered to be those that result from the deterioration of the living conditions of the Haitian population following the earthquake in Haiti on 12 January 2010.

Article 2. Under this Normative Resolution, the visa is granted on an ad hoc basis by the Ministry of Foreign Affairs through the Embassy of Brazil in Port-au-Prince. (Paragraph written pursuant to CNIg Normative Resolution CNIg No. 102 of 26/04/2013)

(Revoked by CNIg Normative Resolution No. 102 of 26/04/2013):

Sole paragraph. A maximum of 1,200 (one thousand two hundred) visas may be granted per year, which corresponds to an average of 100 (one hundred) visas per month, without prejudice to the other forms of visas set out in the legal provisions of the country.

Article 3. In compliance with the legislation in effect, prior to the end of the period set out in paragraph 1 of this normative resolution, Haitian nationals are required to provide justification of their employment to validate their permanence in Brazil and be issued a new foreign ID card.

Article 4. This normative resolution is in effect for a period of two (2) years. The length of validity may be extended.

Article 5. This normative resolution enters into effect on the date of its publication.

PAULO SÉRGIO DE ALMEIDA

Chair, Council. (Brazil 2012, emphasis in the original)

Sources explain that Resolution No.97 limited to 1,200 the number of humanitarian visas granted per year to Haitian nationals, that is, 100 per month (IPPDH and IOM Aug. 2017, 64; Fernandes and de Castro July 2014, 53; Nieto Nov. 2014, 76), excluding the visa applications for family reunification (IPPDH and IOM Aug.2017, 64; Fernandes and de Castro July 2014, 53). Sources state that these humanitarian visas could only be issued by the Consulate of Brazil in Port-au-Prince (IPPDH and OIM Aug. 2017, 64; Nieto Nov. 2014, 76).

Sources report that the adoption of Normative Resolution No. 97 failed to decrease both the surge of Haitian immigrants at the Brazilian border and the number of visas issued in Port-au-Prince (Fernandes and de Castro July 2014, 53; Lois and Rodriguez 2015, 396). According to the article published in July 2014 in the IOM's Cahiers migratoires n° 6, [translation] "[i]n November 2012, the schedule for the authorization of visas for 2013 was full, and the Consulate [of Brazil in Port-au-Prince] opened a waiting list" (Fernandes and de Castro July 2014, 53). A 2015 article on the protection of Haitian migrants in Brazil, written by Rivana Barreto Ricarte de Oliveira, who holds a Juris Doctor degree at the University of São Paulo and is currently [translation] "public defender at the 9th office of criminal defense" (Escavador 28 Aug.2017), explained that some Haitians had been [translation] "isolated" for about three months in Inãpari, a Peruvian city on the border with Brazil (Ricarte de Oliveira 2015). A 2017 joint publication on Haitian migration, prepared by the Instituto de Políticas Pública en Derechos Humanos (IPPDH) (Institute of Public Policy and Human Rights) of the Mercado Común del Sur (MERCOSUR) (Southern Common Market), with the support of the IOM, states that in Brasiléia, in the Brazilian state of Acre, local authorities had established a camp for Haitians (IPPDH and IOM Aug. 2017, 66).

According to sources, the Brazilian government adopted Normative Resolution No. 102 in April 2013 (IPPDH and IOM Aug. 2017, 66; Fernandes and de Castro July 2014, 53). Normative Resolution No. 102 of 26 April 2013 provides as follows:

Normative Resolution No. 102 of 26/04/2013

Published in the Official Journal on 29 March 2013.

Modifies article 2 of Normative Resolution 97 of 12 January 2012.

The National Immigration Council, created under Law No. 6,815 of 19 August 1980, and organized by Law No. 10,683 of 28 May 2003, under the authority granted to it by Decree No. 840 of 22 June 1993

States:

Article 1. The paragraph of article 2 of Normative Resolution No. 97 of 12 January 2012 enters into effect with the following wording:

"Article 2. Under this Normative Resolution, the visa is granted on an ad hoc basis by the Ministry of Foreign Affairs."

Article 2. The sole paragraph of article 2 of Normative Resolution No. 97 of 2012 is repealed.

Article 3. This normative resolution enters into effect on the date of its publication.

PAULO SÉRGIO DE ALMEIDA

Chair, Council. (Brazil 2013a)

Sources explain that Normative Resolution No. 102 revokes the limit of visas granted and eliminates the requirement that the visas be processed only from Port-au-Prince (IPPDH and IOM Aug. 2017, 66; Fernandes and de Castro July 2014, 53-54), opening up the opportunity for them to be issued by, [translation] "among others," the Brazilian consulates in Ecuador, Bolivia and the Dominican Republic (IPPDH and IOM Aug. 2017, 66).

The following normative resolutions extend the validity of Resolution No. 97 of 12 January 2012 for the periods indicated: Normative Resolution No.o106 extends the validity for twelve months (Brazil 2013b), Normative Resolution No.o113 extends the validity until 30 October 2015 (Brazil 2014), Normative Resolution No.o117 extends the validity until 30 October 2016 (Brazil 2015) and Normative Resolution No123 extends the validity until 30 October 2017 (Brazil 2016).

The following table, published in the undated document prepared by CNIg, the Ministry of Labour in Brazil and the IOM, shows the number of visas issued by the Ministry of Foreign Affairs of Brazil (Ministério das Relações Exteriores, MRE) between 2012 and May 2016, under Normative Resolution No. 97, for a total of 48,361 humanitarian visas: