Responses to Information Requests

Research Directorate, Immigration and Refugee Board of Canada

This Response to Information Request replaces the following Responses to Information Requests: ZZZ106283 of April 2019, ZZZ200262 of August 2020, ZZZ200391 of December 2020, and ZZZ200494 of April 2021.

1. Temporary Visas

Sources report that in Brazil, Law No. 13,445 of 24 May 2017 (Lei no 13.445, de 24 maio de 2017), new immigration legislation, came into force on 21 November 2017 (Newland Chase 23 Nov. 2017; Veirano e Advogados Associados 9 Jan. 2018). Sources indicate that the concept of a "permanent visa" no longer exists under Law 13,445 (Deloitte n.d.a; Soter and Lessa June 2020), rather that the options are a temporary visa or a residence permit, "for either a definite or indefinite term" (Soter and Lessa June 2020).

According to a migration governance overview from July 2018 by the International Organization for Migration (IOM),

[i]mmigrants who have been living in the country on a temporary visa are free to apply for an indefinite residence permit. Immigrants can apply for citizenship after four years of residence in the country, provided they fulfil certain requirements (civil capacity, knowledge of Portuguese and a clean criminal record). (UN July 2018, 3)

According to the consular portal of the Brazilian Ministry of Foreign Affairs (Ministério das Relações Exteriores), foreigners in Brazil may receive a visit visa, diplomatic visa, official visa, courtesy visa, or a temporary visa; the latter is granted in the following situations:

1. Temporary Visa I: research, teaching or academic extension;
2. Temporary Visa II: health care visa;
3. Temporary Visa III: humanitarian visa;
4. Temporary Visa IV: as a student;
5. Temporary Visa V: paid work visa;
6. Temporary Visa VI: Working-Holiday Visa: for those who travel primarily for purposes of tourism, with the possibility of undertaking paid employment. Visa granted on the basis of bilateral agreements. There are currently agreements with New Zealand, France and Germany;
7. Temporary Visa VII: as a minister of a religious confession or as a member of an institute of consecrated life and of a congregation or religious order;
8. Temporary Visa VIII – voluntary work visa;
9. Temporary Visa IX – investor visa;
10. Temporary Visa X – visa for activities of economic, scientific, technological or cultural relevance;
11. Temporary Visa XI – family reunification visa;
12. Temporary Visa XII – artistic or sports activities visa;
13. Temporary Visa XIII – temporary visas due to international agreements;
14. Temporary Visa XIV – temporary visas due to the Brazilian immigration policy;
15. VICAM – Temporary Visa for foreign doctors (medical training). (Brazil n.d.a)

According to the website of the Consulate General of Brazil in Vancouver, foreigners "will lose their permanent resident status in Brazil if absent from the national territory for a period exceeding two years" (Brazil n.d.b).

1.1 Family Reunification Visa

According to the website of the Consulate General of Brazil in Montreal, persons seeking to reside in Brazil may be granted a temporary visa for a variety of reasons, including family reunification (Brazil n.d.c). According to the Brazilian Federal Police (Polícia Federal) website, a residence permit granted for the purpose of family reunification will be valid for the same period as the family member's residence authorization (Brazil 30 May 2018). According to the IOM migration governance overview,

[i]mmigrants with temporary or permanent visas can apply for family reunification, which includes (a) spouses or partners, without any discrimination, under the terms of the Brazilian legislation; (b) children; (c) stepchildren or siblings (provided that they are under 18 years of age, students under 24, or of any age if economically dependent); (d) relatives of ascending or descending line up to second degree; or (e) the guardian of a Brazilian citizen. (UN July 2018, 2-3)

An article by Gabriela Lessa, a senior counsel at Veirano e Advogados Associados (Soter and Lessa June 2020), a Brazilian legal firm, states the following:

[a]s to family reunion processes, the new legislation no longer limits ages for dependents, allowing processes for ascendants, descendants, irrespective of age. It is possible to apply for [f]amily reunion processes for married couples, in a civil union, or in a stable union. In Brazil, there are no restrictions, nor any sort of discrimination on same sex relationships, therefore it was already possible to apply for a family reunion process in the former law, as it is in the current legislation. (Lessa 14 May 2019)

1.2 Temporary Visa for Foreign Parents of a Child with Brazilian Citizenship

In correspondence with the Research Directorate, the Deputy Consul General of the Consulate General of Brazil in Toronto stated that

[t]he parents of a Brazilian national may apply for a Family Reunion visa, even if said Brazilian national is a minor (under 18 years of age, as in Brazilian law) according to Brazilian Migration Federal Law - Lei de Imigração no 13.445/2017 and Federal Ordinance 12/2018, article 2, item IV. [see sections 2.1 and 2.3 of this Response] (Brazil 4 Dec. 2020)

In a telephone interview with the Research Directorate, a representative of the Consulate General of Brazil in Montreal stated that, in the case of a temporary visa application for family reunification by parents of a Brazilian citizen, the child with Brazilian citizenship may be a minor (Brazil 2 Dec. 2020).

However, the website of the Consulate General of Brazil in Vancouver states that a permanent visa under family reunification may be granted to [Brazil English version] "dependents" of a Brazilian citizen aged 18 or more (Brazil n.d.d). The same site states that dependents may include [Brazil English version] "ascendants of Brazilian citizens or [a Brazilian permanent resident] if it is proven that the applicant requires effective support from the sponsor" (Brazil n.d.d). However, in follow-up correspondence with the Research Directorate on 9 December 2020, the Deputy Consul General of the Consulate General in Toronto explained that the temporary visa for family reunification is the same as the permanent visa for family reunification, but the terminology has changed with the new immigration legislation [adopted in 2017] and there are no more "'permanent'" visas (Brazil 9 Dec. 2020). The same source added that "the visa in itself is temporary, even though its holder might live indefinitely in Brazil as long as they follow some procedures when they arrive in Brazil in order to [be] granted permanent resident status" (Brazil 9 Dec. 2020). According to the source, visas are temporary because they have an expiry date, but they provide the opportunity to apply for permanent residence in Brazil (Brazil 9 Dec. 2020).

The Deputy Consul General from the Consulate General in Toronto added regarding the visa application that it does not matter whether the Brazilian child lives in Brazil at the time of the application or in Canada with their parents (Brazil 4 Dec. 2020).

2. Family Reunification Laws
2.1 Law No. 13,445 of 2017

The July 2018 IOM overview indicates that

[i]mmigration and emigration are regulated by the new Migration Law (No. 13,445 of 2017), which aggregates and reformulates previous legislation concerning migration policy. …

The Migration Law establishes the conditions and procedures for the entrance, stay and departure of non-nationals in Brazilian territory. It also outlines immigrants' rights, as well as different types of visas (including humanitarian visas) and residence permits for different migrant types. (UN July 2018, 3)

Articles 65 and 66 of Law No. 13,445 of 2017 provide the following:

[translation]

Article 65. Ordinary naturalization shall be granted under the following conditions:

1. having civil capacity, in accordance with Brazilian law;
2. having resided in the national territory for at least four (4) years;
3. being able to communicate in Portuguese, the conditions for acquiring naturalization having been taken into account;
4. having not been convicted of a criminal offence or received a pardon, as per the provisions of the law.

Article 66. The period of residence established in paragraph II of Article 65 shall be reduced to a minimum of one (1) year when the applicant for naturalization meets one of the following conditions:

1. (REPEALED);
2. The applicant has a Brazilian child;
3. The applicant has a Brazilian spouse or partner and is not legally or de facto separated when naturalization is granted;
4. (REPEALED);
5. The applicant provides or is able to provide valuable service to Brazil;
6. The applicant has been recommended for their professional, scientific or artistic skills.

Sole paragraph. Compliance with the conditions set out in paragraphs V and VI of the chapter shall be assessed in accordance with the regulations. (Brazil 2017a)

2.2 Decree No. 9,199 of 20 November 2017

According to sources, Decree No. 9,199 of 20 November 2017 (Decreto no 9.199 de 20 de novembro de 2017) regulates Law No. 13,445 (Newland Chase 23 Nov. 2017; EY Dec. 2017).

Article 45 of Decree No. 9,199 of 20 November 2017 provides the following:

[translation]

Art. 45. A temporary visa shall be granted for family reunification reasons to immigrants who meet one of the criteria listed below. They must:

1. be the spouse or partner, without discrimination, in accordance with the Brazilian legal system;
2. be the child of a Brazilian citizen or an immigrant to whom a residence permit has been granted;
3. have a child with Brazilian citizenship;
4. have a child who is an immigrant and who has been granted a residence permit;
5. be an ascendant up to the second degree of a Brazilian citizen or an immigrant to whom a residence permit has been granted;
6. be a descendant up to the second degree of a Brazilian citizen or an immigrant to whom a residence permit has been granted;
7. be the sibling of a Brazilian citizen or an immigrant to whom a residence permit has been granted; or
8. assume the wardship, trusteeship or guardianship of a Brazilian citizen.

1. By way of an act, the minister of Foreign Affairs has the authority to determine the need for an inperson interview and for additional documents to prove the family relationship, if applicable.
2. By means of a joint order, the ministers of state for Justice, Public Security and Foreign Affairs may establish other family relationships for the purposes of granting visas mentioned in the first paragraph, as well as related requirements, durations, conditions and procedures.
3. In accordance with the law, a visa holder mentioned in the first paragraph may perform any activity in the country, including paid activities, under the same conditions as Brazilian nationals.
4. An application for a temporary visa for reasons of family reunification may be presented at the same time as the family member's application for a temporary visa.
5. The visa mentioned in the first paragraph cannot be granted if the applicant already has a family reunification visa or permit or a temporary residence permit. (Brazil 2017b)

2.3 Decree 12/2018

According to Union Immigration Services, an immigration consulting firm in Brazil (Union Immigration Services n.d.), Interdepartmental Decree 12/2018 (Portaria interministerial 12/2018) extends the scope of family reunification to additional categories of beneficiaries (Union Immigration Services 14 June 2018).

Article 2 of Interdepartmental Decree 12/2018 on granting a temporary visa and a residence permit within the family class provides the following:

[translation]

Article 2. A temporary visa under family reunification may be granted to an immigrant who

1. is the spouse or partner, without discrimination, in accordance with the Brazilian legal system;
2. is the child of a Brazilian citizen or an immigrant to whom a residence permit has been granted;
3. is the stepchild of a Brazilian citizen or immigrant with a residence permit, provided the stepchild is under eighteen years of age, or up to twenty-four years of age if proven to be a student, or of any age if proven to be economically dependent on the applicant;
4. has a child with Brazilian citizenship;
5. has a child who is an immigrant and who has been granted a residence permit;
6. is an ascendant up to the second degree of a Brazilian citizen or an immigrant to whom a residence permit has been granted;
7. is a descendent up to the second degree of a Brazilian citizen or an immigrant to whom a residence permit has been granted;
8. is the sibling of a Brazilian citizen or an immigrant to whom a residence permit has been granted, provided the sibling is under eighteen years of age, or up to twenty-four years of age if proven to be a student, or of any age if proven to be economically dependent on the applicant;
9. assumes the wardship, trusteeship or guardianship of a Brazilian citizen. (Brazil 2018)

3. Rights and Responsibilities of Holders of a Temporary Visa

The Constitution of the Federative Republic of Brazil (Constituição da República Federativa do Brasil) provides the following:

Article 5. All persons are equal before the law, without any distinction whatsoever, Brazilians and foreigners residing in the country being ensured of inviolability of the right to life, to liberty, to equality, to security and to property …

Article 6. Education, health, food, work, housing, transportation, leisure, security, social welfare, protection of motherhood and childhood, and assistance to the destitute, are social rights, as set forth by this Constitution.

…

Article 12.

…

Paragraph 3. The following offices are exclusive for born Brazilians:

1. those of president and vice‑president of the Republic;
2. that of president of the Chamber of Deputies;
3. that of president of the Federal Senate;
4. that of justice of the Supreme Federal Court;
5. those of the diplomatic career;
6. that of officer of the Armed Forces;
7. that of minister of Defence.

…

Article 14.

…

Paragraph 2. Foreigners cannot register as voters … (Brazil 1988a)

According to the July 2018 IOM overview,

[r]ights of access to health-care services, education and social security are universal and encompass all immigrants, regardless of migratory status. These rights are protected by the new Migration Law (No. 13,445 of 2017) and by the Federal Constitution, besides the specific legislation of each area. …

Immigrants can access all levels of care in the public health services, which are free and covered by the Brazilian State, with some exceptions applying to prescription medicine. Similarly, all immigrants, regardless of their legal status, have access to both levels of public education: basic education (kindergarten, elementary and high school) and higher education (undergraduate, graduate and postgraduate).

Immigrants also have access to a range of social assistance benefits, including Bolsa Familia, which is the main federal cash transfer programme. …

Brazil guarantees access for immigrants to social security benefits and to the labour market in a non-discriminatory way. (UN July 2018, 2, italics in original)

The same source also adds that

Non-nationals with a residence permit have the right to work. Residents have the same rights as nationals to access private sector employment and self-employment, but there are some restrictions to access public sector employment. (UN July 2018, 3)

4. Procedures and Requirements
4.1 Issuing Authority

According to the IOM, the Brazilian Federal Police "is responsible for border controls and for overseeing the entrance, duration of stay and exit of foreigners in national territory" (UN July 2018, 7). An article on migration law in Brazil by Deloitte, a "global provider of audit and assurance, consulting, financial advisory, risk advisory, tax, and related services" (Deloitte n.d.b), regarding the new legislation, states that

[t]he Ministry of Justice has recently published new Ordinances to regulate the procedures for the application of residence permits through the Federal Police, for example: health treatment, study, work holiday, family reunion, Agreement or Treaty of Residence, renewal of the Immigrant ID Card, among others. (Deloitte n.d.a)

4.2 Procedures and Requirements to Obtain a Temporary Visa

The website of the Consulate General of Brazil in Montreal provides the following information regarding the procedure for obtaining a temporary visa:

[Brazil English version]

1. Fill out the online visa request form [including uploading a photo].
2. Print and sign the one-page "Visa Form Delivery Receipt (RER)".
3. After submitting the online form, the applicant must present the required documents listed below, as well as specific documents depending on the type of visa requested.
   
   • in person at the [c]onsulate …
   • by mail or a third party
4. The estimated processing time is up to 10 (ten) business days, from the date the documents are received at the [c]onsulate.

… [V]isa fees … : [C$150 (Brazil n.d.e)]. (Brazil n.d.c)

The Consulate General of Brazil in Montreal also lists the following requirements for [Brazil English version] "[all] types of [t]emporary [v]isa":

[Brazil English version]

Original passport

• The passport must be valid for the entire period of the stay in the country until the date of applicant's departure.
• It must have at least two blank pages, for the visa.
• Non-Canadians must also provide proof of legal status in Canada such as valid visa (if applicable), admission stamp on the passport, a copy of valid study permit or a copy of valid work permit or a copy of the permanent resident card[.]

Birth certificate

• The name of the parents must be indicated.
• [In the registration process with the Federal Police, in Brazil, the birth certificate must be legalized.]

[RER]

• Fill out the Visa Request Form [online].
• Print the [RER] and sign it in the designated box.
• In case of minor applicants, both parents must sign the [RER] in the designated box.

One (1) recent passport photo

• A passport photo of the front face, taken against a plain off-white or white background, within the last 6 months.

…

If the applicant is under 18 years old, [the following] is required:

1. Minor Travel Authorization Form signed by both parents or [the] legal guardia[n].
2. A copy of a document proving the relationship with the minor. Examples: one piece of [ID] from each parent accompanied by the minor's birth certificate stating the parent's names; or parent's death certificate, when applicable; or a copy of a judicial document attesting the sole custody, when applicable. (Brazil n.d.c)

4.3 Procedures and Requirements to Obtain a Family Reunification Visa

According to the IOM Haiti's Brazilian Visa Application Center (BVAC),

[translation]

[f]or family reunification, an appropriate visa may be granted to the dependents of any Brazilian citizen or foreigner over the age of 18, having an authorization to reside in Brazil.

The following are considered dependents:

1. Spouse (husband/wife);
2. Ascendants (father/mother), provided that the applicant (Brazilian citizen) proves their need for assistance;
3. Unmarried children under the age of 18 or over, provided they are unable to provide for their own subsistence;
4. Brothers/sisters, grandson (granddaughter) or great-grandson (great-granddaughter) if orphans, single and under the age of 18, or over if unable to provide their own subsistence;

The above-mentioned dependents will be considered as such until the age of 24, provided they are enrolled in a higher education or doctorate course, and that Brazilian nationals are treated in the same way in the country of origin of the foreign national.

…

To apply for a family reunification visa (humanitarian reception – VITEM XI) with families holding humanitarian visas:

• Passport valid for a minimum of six (6) months on the day of departure of the person concerned, with at least two (2) blank pages;
• One (1) recent passport size photo (3 x 4 cm);
• Extract from the criminal record issued by the Central Directorate of the Haitian Judicial Police (Direction centrale de la police judiciare d'Haïti, DCPJ) (less than three months), for adults;
• Original extract of marriage and birth certificate issued by the National Archives (Archives nationales) (duly legalized by the Ministry of Foreign Affairs (Ministère des Affaires étrangères), Public Prosecutor's Office (Parquet) and Ministry of Justice (Ministère de la Justice)). In the absence of the Marriage Certificate Extract, the original of the deed of cohabitation will be accepted (duly legalized by the Ministry of Foreign Affairs);
• Legible copy of the Brazilian document proving that the person living in Brazil has a residence permit in Brazil;
• Affidavit that the person lives in Brazil and holds an authorization proving that they have Brazilian residency[;]
• An invitation letter[;] [and]
• Original receipt for payment of BVAC fees, in the amount of US$60.00 per visa, to the IOM account at SOGEBANK no. 2616027989[.]

For minors (under 18), it is also necessary to have:

• Authorization to apply for a visa for Brazil for the minor. The authorization must be signed by the parents and be authenticated by a [n]otary in Brazil and/or legalized with the Ministry of Foreign Affairs, in Haiti. Note that the name of the person who will present themselves must be mentioned in the authorization;
• Original extract of the Birth Certificate for applicants over 3 years old issued by the National Archives (duly legalized by the Ministry of Foreign Affairs) and copy; [b]irth certificates issued by the Courts of Peace (Tribunaux de paix) or Civil Status (État civil) for those over 3 years old will not be accepted;
• Copies of identity documents (passport or identity card) of both parents. In the event of divorce, copy of the judgment conferring custody. In the event of the death of one of the parents, original of the death certificate (duly legalized by the Ministry of Foreign Affairs) and a copy;
• An invitation letter. (UN n.d.)

According to the representative of the Consulate General in Montreal, the requirements and procedure for the parents of a minor child with Brazilian citizenship to apply for a temporary visa for family reunification are the same as those for an adult child (Brazil 2 Dec. 2020). The Deputy Consul General noted that the procedure for requesting such a visa is "the same as stated on our website" in the section VITEM XI and that although the site sometimes refers to the applicant as "spouse," the same requirements and procedures apply for the parents (Brazil 4 Dec. 2020). The website of the Consulate General of Brazil in Toronto lists the following steps to apply for a temporary visa

• Fill out the visa request form online.
• Print and sign the one-page Visa Form Delivery Receipt (RER).
• Submit in person the additional documents required, including documents specific to the type of visa requested (Brazil n.d.f).

According to the same source, the following documents are required for all types of temporary visa:

• A passport that is valid for the entire period of the stay in the country with two blank pages for the visa. Non-Canadians must also provide proof of legal status in Canada, such as a valid visa (if applicable), an admission stamp in the passport, a copy of a valid study or work permit or a copy of the permanent resident card;
• A birth certificate showing the parents' names;
• The RER form once the visa application form has been completed online;
• A recent passport-type photo;
• If the applicant is a minor, the Minor Travel Authorization Form signed by both parents or the legal guardians, and a copy of a document proving their relationship with the applicant;
• Proof of income: a bank or credit card statement or pay stubs from the last three months (Brazil n.d.f).

In addition, in the case of a temporary visa for family reunification, the same source states that the following documents are required:

• Criminal record check based on full name, issued within the last three months by the RCMP or the local police force;
• Proof of relationship to the Brazilian national (e.g., birth certificate);
• Official ID for the Brazilian spouse;
• Declaration of the Brazilian spouse's residence: declaration by the Brazilian spouse, under penalty of law, that he or she lives or intends to live in Brazil and for how long;
• Declaration by the foreign applicant that they have no criminal record in any country in the five years prior to the visa application date;
• Birth certificate showing the name of the parents. For the registration process with the Brazilian Federal Police (Polícia Federal), the certificate must be legalized (Brazil n.d.f).

However, the representative of the Consulate General in Montreal stated that the declaration signed by the Brazilian party is not required in the case of a minor child who is a Brazilian citizen and added that proof of the relationship between the child and their parents, namely, the Brazilian birth certificate, is required (Brazil 2 Dec. 2020).

Information on timelines to process requests, frequency and grounds for refusal, as well as information on reacquisition of permanent resident status, could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

5. Treatment of Unaccompanied Minors with Brazilian Citizenship

Information on the treatment of children with Brazilian citizenship, born of Haitian parents, who return alone to Brazil was scarce among the sources consulted by the Research Directorate within the time constraints of this Response.

In correspondence with the Research Directorate, a project coordinator at the Brazil office of the IOM indicated that as with "any unaccompanied minors who travel alone [along] perilous migration routes, Haitian minors would certainly be vulnerable to abuse and exploitation from all sorts of agents along their journey" (UN 11 Feb. 2021).

According to Minority Rights Group International (MRG), "[w]ith little opportunity to improve their lives, young Afro-Brazilian men in particular have been drawn into drug gangs and violence," and Afro-descendant youth in Brazil "disproportionately" face these threats (MRG n.d.). An August 2020 blog post by Beatriz Rey and Estevan Muniz and published by the Wilson Center's Brazil Institute [1] reports that, according to statistics from the Brazilian Ministry of Health (Ministério da Saúde), 10,821 children aged 0 to 14 were killed by firearms from 2001 to 2018, and of those children, 7,352 or 68 percent were Black; in the same period, 129,718 teenagers between 15 and 19 years old were killed by firearms, and 91,806 or 70 percent of these were Black teenagers (Rey and Muniz 20 Aug. 2020). The same source adds that, according to data from the Brazilian Institute of Geography and Statistics (Instituto Brasileiro de Geografia e Estatística, IBGE), Black people constituted 55.5 percent of the population in Brazil in 2018 (Rey and Muniz 20 Aug. 2020).

For information on the treatment of Haitians in Brazil, including access to education, health care and other services as well as state protection and support services, see Response to Information Request ZZZ200291 of August 2020.

6. State Protection for Brazilian Children
6.1 Child Protection Laws

The Constitution provides the following:

Art. 227. It is the duty of the family, the society and the Government to assure children, adolescents, and youths, with absolute priority, the rights to life, health, nourishment, education, leisure, professional training, culture, dignity, respect, liberty and family and community harmony, in addition to safeguarding them against all forms of negligence, discrimination, exploitation, violence, cruelty and oppression.

…

§ 3°. The right to special protection shall encompass the following aspects:

…

VI - Government encouragement, through legal assistance, fiscal incentives and subsidies, as provided by law, for protection through guardianship of orphaned or abandoned children or adolescents;

… (Brazil 1988b)

A report by the International Federation of Red Cross and Red Crescent Societies (IFRC) on Brazilian child protection legislation during disasters describes the Statute of the Child and Adolescent, Law No. 8.069 of 13 July 1990 (Estatuto da Criança e do Adolescente, Lei nº 8.069, de 13 de julho de 1990, ECA) as the "leading normative instrument" for child protection (IFRC 30 June 2020, 10). Similarly, the IOM Project Coordinator indicated that the ECA is the "basis for all public policies" on children and adolescents in Brazil, including both Brazilian nationals and foreigners (UN 11 Feb. 2021). Based on interviews conducted with "Brazilian experts" and a member of the Federal Public Defender's Office (Defensoria Pública da União, DPU), a March 2018 report on the treatment of migrant children in Brazil by Kids Empowerment, an NGO founded by "legal experts" working on the rights of migrant children (Kids Empowerment n.d.), notes that Brazilian courts have ruled that the ECA is applicable to migrant and refugee children (Kids Empowerment Mar. 2018, 16).

The ECA provides the following:

[translation]

Art. 28. Under the terms of this law, placement in a foster family will be done by means of custody, guardianship or adoption, regardless of the legal status of the child or adolescent.

Paragraph 1. Whenever possible, the child or adolescent will be previously heard by an interprofessional team, with respect for his/her stage of development and level of understanding of the implications of the measure, and his/her opinion will be duly considered. (As amended by Law No. 12,010 of 2009)

Paragraph 2. Consent obtained at a hearing is required for those over twelve (12) years of age. (As amended by Law No. 12,010 of 2009)

Paragraph 3. In assessing the request, the degree of kinship and relationship of affinity or affection will be taken into account, so as to avoid or minimize the consequences of the measure. (As added by Law No. 12,010 of 2009)

…

Art. 29. Placement in a foster family will not be granted where a person demonstrates any form of incompatibility with the nature of the measure or where a suitable family environment is not available.

Art. 30. Placement in a foster family will not permit transfer of the child or adolescent to third parties or governmental or non-governmental entities without judicial authorization.

Art. 31. Placement in a foreign foster family constitutes an exceptional measure and is only permissible in the modality of adoption.

Art. 32. Upon assuming custody or guardianship, the responsible party commits to performing the charge well and faithfully, according to a statement included in the records.

Subsection II

Custody

Art. 33. Custody implies the obligation to provide material, moral, and educational assistance to the child or adolescent, and grants the party having custody the right to oppose third parties, including parents.

Paragraph 1. Custody is meant to regularize the de facto function, and may be granted in a preliminary or incidental manner in guardianship or adoption proceedings, except in the case of adoption by foreigners.

Paragraph 2. On an exceptional basis, custody will be granted in cases that do not involve guardianship and adoption to meet the needs of specific situations or to compensate for a possible absence of the parents or guardians, and the right of representation may be granted for carrying out specific acts.

Paragraph 3. For all legal purposes and effects, including social security, custody confers the condition of dependent upon the child or adolescent.

Paragraph 4. Barring an express and substantiated determination to the contrary by the competent judicial authority, or when the measure is applied in preparation for adoption, the granting of custody of children or adolescents to third parties does not impede the exercise of parental visiting rights, as well as the duty to provide support, which will be covered by specific regulation, at the request of the interested party or of the Public Prosecutor's Office. (As added by Law 12,010 of 2009).

...

Art. 36. Guardianship will be granted, pursuant to civil law, to a person up to eighteen (18) years of age. (Redrafted by Act 12,010 of 2009)

Single Paragraph. Granting guardianship presupposes the previous decree of loss or suspension of family authority, and necessarily implies the duty of guardianship.

...

Art. 98 Protection measures for children and adolescents are applicable whenever the rights recognized in this Law are threatened or violated:

1. by act or omission of society or of the State;
2. by fault, omission, or abuse on the part of parents or guardians;
3. by reason of their conduct.

...

Art. 101. Whenever any of the cases specified in Art. 98 is verified, the competent authority may determine, among others, the following measures:

1. transfer to the parents or guardian, by means of a statement of responsibility;
2. temporary guidance, support, and monitoring;
3. compulsory enrollment and attendance at a public elementary school;
4. inclusion in community or government services and programs for the protection, support, and promotion of the family, children and adolescents; (As amended by Law No. 13,257 of 2016)
5. request for medical, psychological or psychiatric treatment, in a hospital or outpatient setting;
6. inclusion in a government or community program for assistance, guidance, and treatment for alcoholics and drug addicts;
7. institutional foster care; (As amended by Law No. 12,010 of 2009)
8. inclusion in a family foster care program; (As amended by Law No. 12,010 of 2009)
9. placement in a foster family. (As amended by Law No. 12,010 of 2009)

... (Brazil 2019, 28-29, 61, 63)

In correspondence with the Research Directorate, the Interim Head of the Consular Section at the Embassy of Brazil in Ottawa explained that Article 101 of the ECA "lists the sequence of measures to be determined by the competent authority" whenever a child's rights are "threatened or violated" (Brazil 9 Apr. 2021).

The March 2018 Kids Empowerment report notes that articles 33 and 36 of the ECA provide two child protection systems that cover both Brazilian and foreign children: a "guardianship" [translated as "custody" in the excerpt of the ECA] for the "temporary/occasional" absence of parents and a "tutelage" [translated as "guardianship" in the excerpt of the ECA] system for the "permanent lack of parents" (Kids Empowerment Mar. 2018, 24). The same source adds that "very little practical difference exists between guardianship and tutelage" and that the "duties of the tutor towards the child are the same as the guardian's" (Kids Empowerment Mar. 2018, 24, 25).

6.2 State Services

According to the IOM Project Coordinator, Brazilian authorities will recognize the rights of a child with Brazilian nationality, provided the child can prove their status through a Brazilian ID, passport or birth certificate (UN 11 Feb. 2021). Without providing further details, the same source stated that there is also a legal procedure to verify the nationality of children who do not have their IDs (UN 11 Feb. 2021). The IOM Project Coordinator noted that an unaccompanied child with Brazilian nationality will have access to Brazilian consular assistance before they reach Brazil and added that once the child reaches Brazilian territory, they will be placed under the protection of the Guardianship Council [Tutelary Council] (Conselho Tutelar) and the DPU as soon as the child contacts the authorities (UN 11 Feb. 2021). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

The IFRC report explains that the Guardianship Council is "an autonomous, non-judicial body charged with enforcing the rights of children and adolescents" (IFRC 30 June 2020, 12). The ECA provides the following:

[translation]

Article 131. The Guardianship Council is a permanent, autonomous, non-jurisdictional body, charged by society with ensuring the observance of child and adolescent rights, as defined in this Law.

Art. 132. In each municipality and administrative region of the Federal District, there must be at least one (1) Guardianship Council as an integral organ of the local public administration. The council is composed of five (5) members selected by the local population for a term of office of four (4) years, which may be renewed once through a new selection process. (As amended by Law No. 12,696 of 2012) (Brazil 2019, 75)

A journal article on guardianship councils published in Cadernos EBAPE.BR [2] and written by Hemerson Luiz Pase, an associate professor at the Federal University of Rio Grande (Universidade Federal do Rio Grande) in Brazil, and three other co-authors [3], observes that the Guardianship Council "acts as a link between the organs that make up the network of protection of children and adolescents" (Pase, et al. Oct.–Dec. 2020, 9, 11).

The IFRC report explains that the DPU "provides specialized services to promote and defend the rights of children," including proposing measures to protect a child's individual interests (IFRC 30 June 2020, 13). A December 2019 Human Rights Watch (HRW) report on unaccompanied Venezuelan children in Brazil indicates that DPU officials interview unaccompanied or separated children at Brazilian ports of entry to determine their situation and "vulnerability" and provide the children with information about services (HRW 5 Dec. 2019).

The information in the following paragraph was provided by the Interim Head of the Consular Section at the Embassy of Brazil in Ottawa:

The "priority" will be to "reintegrat[e]" families or place the child with extended family. "Adoption is a measure to be taken only when the resources for keeping the child or adolescent in the immediate or extended family have been exhausted." There are also two types of foster care provided by the ECA: "institutional" and "family." If minors are eligible for adoption, their information will be included in the National Adoption and Foster Care System (Sistema Nacional de Adoção e Acolhimento, SNA), which is a database created in 2019 containing "profile[s]" of children and adolescents in the protection system, as well as of the children "desired by the applicants for adoption" (Brazil 9 Apr. 2021).

6.2.1 Implementation

The Interim Head of the Consular Section at the Embassy of Brazil in Ottawa indicated that out of a total of 34,157 children and adolescents in the SNA, 96 percent or 32,791 are in institutional foster care and 4 percent or 1,366 are in family foster care (Brazil 9 Apr. 2021). The same source added that older children and those with siblings "tend to face a longer waiting period for adoption," since "[o]nly" 0.3 percent of applicants are interested in adopting adolescents and the ECA requires that siblings be placed in the same family (Brazil 9 Apr. 2021). According to the same source, this "results in many minors" not being adopted and staying in shelters until adulthood (Brazil 9 Apr. 2021).

The IOM Project Coordinator stated that the "actual capacities and implementation of the [ECA] policy may vary a lot [between] federal unit[s], depending on their socioeconomic context" (UN 11 Feb. 2021). The March 2018 Kids Empowerment report indicates that implementation of rights guaranteed by the Constitution and the ECA is challenged by "Brazilian territorial extension [and] different levels of regional development, as well as economic, social and political inequalities" (Kids Empowerment Mar. 2018, 5). Pase et al. observe that "the ineffective functioning of the service network [for child protection] often hinders the protection of rights, since many services are not made available by the municipality or [are] made available in an inadequate or insufficient manner" (Pase, et al. Oct.–Dec. 2020, 9). Information on government services capacity of individual Brazilian states or municipalities could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

A September 2019 report by Response for Venezuelans (R4V), an inter-agency coordination platform for refugees and migrants from Venezuela co-led by the IOM and the UNHCR (R4V n.d.), indicates that, the Youth Court of Roraima State [4] issued a decision on 13 September 2019 in relation to the increasing number of unaccompanied children arriving from Venezuela, declaring that unaccompanied children of "any nationality" can no longer be sent to state children's shelters, except by judicial decision, as the shelters are over capacity and are "deemed inappropriate to the development and care of children and adolescents" (R4V Sept. 2019, 2). The December 2019 HRW report notes that the 13 September 2019 court decision found that Roraima's state children's shelters "did not provide safe and clean facilities, nor the educational support required by law" (HRW 5 Dec. 2019). The same source adds that prior to the 13 September 2019 court ruling, Roraima State's guardianship councils were able to place some unaccompanied children in state shelters where the shelter director can act as a child's guardian, enabling them to go to school and obtain identity documents to access the public health service (HRW 5 Dec. 2019).

7. Non-Governmental Support Services for Unaccompanied Minors

The IOM Project Coordinator noted that civil society organizations who work on migration issues are "well trained and prepared" to assist unaccompanied migrant children and added that Brazil has civil society organizations founded by Haitian migrants that can provide assistance to Haitians in Brazils (UN 11 Feb. 2021). Further and corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

This Response was prepared after researching publicly accessible information currently available to the Research Directorate within time constraints. This Response is not, and does not purport to be, conclusive as to the merit of any particular claim for refugee protection. Please find below the list of sources consulted in researching this Information Request.

Notes

[1] According to its website, the Wilson Center is a think tank charted by US Congress (Wilson Center n.d.a). The Brazil Institute is a part of the Wilson Center's Latin American Program and focuses on research and debate on US-Brazil bilateral matters (Wilson Center n.d.b). The August 2020 blog post was authored by Beatriz Rey, a research fellow at the Center for Latin American and Latino Studies at American University and a PhD candidate in political science at Syracuse University (Wilson Center n.d.c) and Estevan Muniz, a reporter at TV Globo (Wilson Center n.d.d).

[2] According to its website, Cadernos EBAPE.BR is a peer-reviewed online journal on administration, sponsored by the Brazilian School of Public and Business Administration (Escola brasileira de administração pública e de empresas) of the Getulio Vargas Foundation (Fundação Getulio Vargas) (Cadernos EBAPE.BR n.d.).

[3] Hemerson Luiz Pase's co-authors are Gabriele Padilha Cunha, who holds a master's degree from the Federal University of Pelotas (Universidade Federal de Pelotas) in Brazil, Márcia Leite Borges, a post-doctoral fellow at the Federal University of Rio Grande (Universidade Federal do Rio Grande) in Brazil, and Ana Paula Dupuy Patella, a PhD student at the Federal University of Rio Grande do Sul (Universidade Federal do Rio Grande do Sul) in Brazil (Pase, et al. Oct.–Dec. 2020, 11).

[4] The December 2019 Human Rights Watch (HRW) report indicates that the "vast majority of Venezuelans" enter Brazil through Roraima State, which is "poorly connected" to the rest of Brazil, and according to Roraima state officials, this has overwhelmed state and municipal health care services, schools and social services for vulnerable children (HRW 5 Dec. 2019).

References

Brazil. 9 April 2021. Embassy of Brazil in Ottawa. Correspondence from the Interim Head of the Consular Section to the Research Directorate.

Brazil. 9 December 2020. Consulate General of Brazil in Toronto. Correspondence from the Deputy Consul General to the Research Directorate.

Brazil. 4 December 2020. Consulate General of Brazil in Toronto. Correspondence from the Deputy Consul General to the Research Directorate.

Brazil. 2 December 2020. Consulate General of Brazil in Montreal. Telephone interview with a representative.

Brazil. 2019. Conselho Nacional dos Direitos da Criança e do Adolescente (CONANDA) and Ministério da Mulher, da Família e dos Direitos Humanos (MDH). Estatuto da Criança e do Adolescente, Lei nº 8.069, de 13 de julho de 1990. Excerpts translated by the Translation Bureau, Public Services and Procurement Canada. [Accessed 25 Mar. 2021]

Brazil. 30 May 2018. Polícia Federal. "Residência com base em reunião familiar." Excerpt translated by the Translation Bureau, Public Services and Procurement Canada. [Accessed 5 June 2018]

Brazil. 2018. Portaria interministerial nº 12, de 13 de junho de 2018. Excerpt translated by the Translation Bureau, Public Services and Procurement Canada. [Accessed 9 Dec. 2020]

Brazil. 2017a. Lei No 13.445, de 24 de maio de 2017 (Law No. 13,445 of 24 May 2017). Excerpt translated by the Translation Bureau, Public Services and Procurement Canada. [Accessed 5 June 2018]

Brazil. 2017b. Decreto Nº 9.199, de 20 de novembro de 2017 (Decree No. 9,199 of 20 November 2017). Excerpt translated by the Translation Bureau, Public Services and Procurement Canada. [Accessed 5 June 2018]

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Brazil. 1988b (amended 2020). Constitution of the Federative Republic of Brazil, 1988, as Amended to December 2020. Translated and annotated by Keith S. Rosenn. In World Constitution Illustrated. 2020. Edited by Jefri Jay Ruchti. Getzville, NY: William S. Hein & Co., Inc. [Accessed 18 Feb. 2021]

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Additional Sources Consulted

Oral sources: Aetna International; associate professor at a Rio de Janeiro-based university who has conducted research on migrants in Brazil; Botinha & Cabral; Brazil – consulate in Vancouver, Defensoria Pública da União, Ministério da Mulher, da Família e dos Direitos Humanos, Polícia Federal; Conectas; EMDOC; Ernst & Young; Establish Brazil; former federal public defender responsible for migration and refugees; Fundação Abrinq; Haiti Aqui; immigration consultant firms in Brazil, Canada and the US; Instituto Fazendo História; International Committee of the Red Cross – Regional Delegation for Argentina, Brazil, Chile, Paraguay and Uruguay; International Federation of Red Cross and Red Crescent Societies – Cruz Vermelha Brasileira; Mattos Filho; Mawon; Oliveira Lawyers; Organização dos Haitianos que Vivem no Brasil; researcher at a Rio de Janeiro-based university who has conducted research on the Brazilian foster care system; researcher at a Rio Grande do Sul-based university who has conducted research on Brazilian children's rights; Save the Children – Latin America and the Caribbean Regional Office; Serviço Jesuíta a Migrantes e Refugiados Brasil; UN – UNICEF; Veirano e Advogados Associados; Visto Brasil.

Internet sites, including: Aetna International; Agência Brasil; Amnesty International; Associated Press; Asylum Research Centre; Better Care Network; Botinha & Cabral; Brazil – Comitê Nacional para os Refugiados, consulate general in New York, embassies in Ottawa, Port-au-Prince, and Washington, Instituto Brasileiro de Geografia e Estatística, Ministério da Justiça e Segurança Pública, Observatory of International Migration, Permanent Mission of Brazil to the UN, Polícia Federal; The Brazilian Report; Caritas; Early Child Development and Care; ecoi.net; EMDOC; Establish Brazil; EU – European Asylum Support Office, Migration EU Expertise; Factiva; The Haitian Times; Human Rights Watch; Igarapé Institute; International Centre for Migration Policy Development; Migration for Development & Equality; Migration Policy Institute; Oliveira Lawyers; Organisation for Economic Co-operation and Development; Organization of American States – Inter-American Commission on Human Rights; Oxfam – Oxfam Brasil; Reuters; The Rio Times; Saúde em Debate; Serviço Jesuíta a Migrantes e Refugiados Brasil; UN – Refworld, UNHCR, UNICEF; US – Department of State, Law Library of Congress; Veirano e Advogados Associados; World Bank.