Responses to Information Requests

Research Directorate, Immigration and Refugee Board of Canada

This Response to Information Request is a consolidation of the information regarding the history of immigration legislation concerning permanent residence for Haitian nationals in Brazil contained in the Responses ZZZ200574 of June 2022, ZZZ201123 of July 2022, ZZZ201543 of July 2023, and ZZZ201256 of July 2023.

1. Overview

Sources indicate that Brazil [translation] "decided to open its borders to all Haitian nationals" by granting a humanitarian residence visa valid for five years (Le Nouvelliste 2015-10-07; Nofi 2015-10-16). The same sources cite Fernando Vidal, Brazil's Ambassador to Haiti, as stating in 2015 that [translation] "there are no ceilings, no requirements, no restrictions" (Le Nouvelliste 2015-10-07; Nofi 2015-10-16). An article published by the Migration Policy Institute (MPI), "an independent, nonpartisan, nonprofit think tank" in Washington (MPI n.d.), reports that after the 2010 earthquake in Haiti, Brazil granted humanitarian visas and permanent residence to approximately 98,000 Haitians (MPI 2018-03-29).

2. Legislation

Sources report that on 24 May 2017, Brazil adopted new immigration legislation, Law No. 13,445 of 24 May 2017 (Lei no 13.445, de 24 Maio de 2017) (Soter & Lessa 2017-07; US 2017-06-08). According to sources, the 2017 law supersedes Law No. 6,815 of 19 August 1980 (Lei n° 6.815, de 19 de Agosto de 1980) (PwC 2017-11-09; Newland Chase 2017-06-14). Sources indicate that Law No. 13,445 came into force on 21 November 2017 (Newland Chase 2017-11-23; Veirano E Advogados Associados 2018-01-09). 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 2017-11-23; EY 2017-12).

The table below provides a summary of the visas and types of residence granted to Haitian nationals under Law No. 6,815 of 1980 and Law No. 13,445 of 2017:

2.1 Legislative Framework Under Law No. 6,815 of 19 August 1980
2.1.1 Recommended Resolution No. 08/06 and Normative Resolution No. 27

According to sources, between January 2010 and February 2011 [between 2010 and 2012 (IJDH & NWIRP 2017-04-03, 1)], Haitian nationals arrived at the Brazilian border [via Tabatinga or Brasiléia (IPPDH & IOM 2017-08, 64)] to apply for refugee status (IJDH & NWIRP 2017-04-03, 1; IPPDH & IOM 2017-08, 64). The same sources state that, at that time, the National Committee for Refugees (Comitê Nacional para os Refugiados, CONARE), the Brazilian organization responsible for assessing and deciding on refugee claims (Brazil n.d.a), refused to grant Haitians refugee status (IJDH & NWIRP 2017-04-03, 1; IPPDH & IOM 2017-08, 64), rendering the status of Haitians in Brazil [translation] "irregular" (IPPDH & IOM 2017-08, 65). According to a 2016 article in Forced Migration Review (FMR), published by the Refugee Studies Centre at the University of Oxford (FMR n.d.), the Brazilian government does not consider environmental crises a valid reason for granting refugee status (Jubilut, et al. 2016-10, 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 & IOM 2017-08, 64; de Souza Rodrigues 2016, 173), by granting them [translation] "authorization to stay in Brazil for humanitarian reasons" (IPPDH & IOM 2017-08, 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 the International Organization for Migration (IOM) (La RED n.d.), states that the Resolution No. 08/06 enabled Haitians to obtain [translation] "permanent residence [in Brazil] for humanitarian reasons" (Nieto 2014-11, 76).

An article published in January 2014 [1] on the website of the Institute of Migration and Human Rights (Instituto Migrações e Direitos Humanos, IMDH), a nonprofit organization in Brazil (IMDH 2014-01-06), reports that, during a plenary meeting in March 2011, the CNIg, pursuant to Resolution 08/06, granted [translation] "permanent residence in Brazil for humanitarian reasons" to 199 Haitian nationals (IMDH 2014-01-20). According to the 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 2014-01-20).

Recommended Resolution No. 08/06 provides the following:

[translation]

RECOMMENDED RESOLUTION No. 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 original)

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

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, emphasis in original)

An undated document prepared by the CNIg, the Brazilian Ministry of Labour (Ministério de Trabalho, MTB) 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 & IOM n.d.a, 1).

2.1.2 Normative Resolution No. 97

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 & de Castro 2014-07, 53)], [translation] "a permanent humanitarian visa" (Fernandes & de Castro 2014-07, 53) or a "'permanent' visa […] for 'humanitarian reasons'" (IJDH & NWIRP 2017-04-03, 2). Normative Resolution No. 97 of January 2012 provides the following:

[translation]

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

Resolves 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 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 & IOM 2017-08, 64; Fernandes & de Castro 2014-07, 53; Nieto 2014-11, 76), excluding the visa applications for family reunification (IPPDH & IOM 2017-08, 64; Fernandes & de Castro 2014-07, 53). Sources state that these humanitarian visas could only be issued by the Consulate of Brazil in Port-au-Prince (IPPDH & IOM 2017-08, 64; Nieto 2014-11, 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 & de Castro 2014-07, 53; Lois & Rodriguez 2015, 396). According to an article published in July 2014 in the IOM's Cahiers migratoires n° 6 [2], [Fernandes & de Castro English version] "[i]n November 2012, the agenda for visa issuance for 2013 was already overbooked and the Consulate [of Brazil in PortauPrince] opened a waiting list" (Fernandes & de Castro 2014-07, 53). A 2015 article on the protection of Haitian immigrants in Brazil, written by Rivana Barreto Ricarte de Oliveira, who holds a doctorate in law from the University of São Paulo (Escavador 2017-08-27), reports 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 Institute of Public Policy and Human Rights (Instituto de Políticas Pública en Derechos Humanos, IPPDH) of the Southern Common Market (Mercado Común del Sur, MERCOSUR), 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 & IOM 2017-08, 66).

According to sources, the Brazilian government adopted Normative Resolution No. 102 in April 2013 (IPPDH & IOM 2017-08, 66; Fernandes & de Castro 2014-07, 53). 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 & IOM 2017-08, 66; Fernandes & de Castro 2014-07, 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 & IOM 2017-08, 66). Normative Resolution No. 102 of 26 April 2013 provides the following:

[translation]

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, emphasis in original)

The following normative resolutions extend the validity of Resolution No. 97 of 12 January 2012 for the periods indicated: Normative Resolution No. 106, which came into effect on 25 October 2013, extends the validity for twelve months (Brazil 2013b); Normative Resolution No. 113, which came into effect on 15 December 2014, extends the validity until 30 October 2015 (Brazil 2014); Normative Resolution No. 117, which came into effect on 17 August 2015, extends the validity until 30 October 2016 (Brazil 2015); and Normative Resolution No. 123, which came into effect on 20 September 2016, extends the validity until 30 October 2017 (Brazil 2016).

A 3 April 2017 document on Haitians in Brazil prepared by the Northwest Immigrant Rights Project (NWIRP), an organization that advances the rights of immigrants by, for example, providing legal services (NWIRP n.d.), in partnership with the Institute for Justice & Democracy in Haiti (IJDH), a non-profit organization in the United States (IJDH n.d.), explains that, to apply for permanent residence under Brazil's immigration law of 1980 (replaced by Law No. 13,445 of 2017), Haitians must go to the Federal Police Department (Polícia Federal) before the expiration of their fiveyear visa (IJDH & NWIRP 2017-04-03, 2). Haitian nationals must prove that they are working and are domiciled in Brazil (IJDH & NWIRP 2017-04-03, 2). Corroborating information could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

2.2 Legislative Framework Under Law No. 13,445 of 2017

Given the provisions of Law No. 13,445, Brazil adopted ministerial act No. 10 of 6 April 2018 which [translation] "[p]rovides that temporary visas and residence permits shall be granted for humanitarian reasons to Haitian nationals and stateless persons residing in the Republic of Haiti" (Brazil 2018). Under Article 13, the ministerial act came into effect on the day it was published, i.e. on 9 April 2018 (Brazil 2018).

2.2.1 Interministerial Order No. 10 of 6 April 2018

Interministerial Order No. 10 of 6 April 2018 provides as follows:

[translation]

Article 1. This order sets out the procedures for processing applications for temporary visas and residence permits based on humanitarian reasons for Haitian citizens and stateless persons residing in the Republic of Haiti.

Sole Paragraph. The possibility of humanitarian reasons under this order shall be without prejudice to the recognition of other provisions that Brazil could adopt in the future.

Article 2. A temporary humanitarian visa may be granted to Haitian citizens and stateless persons residing within the territory of the Republic of Haiti.

§ 1. The temporary humanitarian visa granted to the individuals mentioned in the first paragraph shall be valid for 90 days.

§ 2. The temporary humanitarian visa shall be granted exclusively by the Embassy of Brazil in Port-au-Prince.

§ 3. The temporary humanitarian visa shall be granted without prejudice to the other visa conditions set out in Law No. 13,445 of 2017 and in Decree No. 9,199 of 2017.

Article 3. To apply for a visa, the immigrant must provide the consular authority with the following documents:

1. a valid travel document;
2. an international vaccination certificate, when requested by the Brazilian Health Regulatory Agency (ANVISA);
3. the completed visa application form;
4. proof of the mode of transportation used to enter Brazilian territory;
5. a criminal record certificate issued by the Republic of Haiti or, at the discretion of the consular authority, an equivalent document issued by a competent authority in that country.

Article 4. Immigrants benefiting from this order must register at a Federal Police office within 90 days of their arrival in Brazil.

Sole Paragraph. Temporary residence granted for humanitarian reasons to individuals who have registered as indicated above shall be valid for two years.

Article 5. Nationals of the Republic of Haiti and stateless persons residing in Haiti who arrived in Brazil before this order was published may apply to a Federal Police unit for a residence permit for humanitarian reasons.

Sole Paragraph. As stipulated by the order, the residence permit shall be valid for two years.

Article 6. The following documents must be presented in order to formalize the residence permit application:

1. a travel document or an official identity document;
2. two photographs (3 x 4);
3. a birth or marriage certificate or a consular certificate, provided it has not already been recorded as one of the documents mentioned in point I;
4. a criminal record certificate issued by the Brazilian state where the individual has been residing in Brazil for the past five years;
5. a certificate of absence of criminal record from the countries in which the individual has resided in the past five years (failure to provide this certificate shall result in a fine as provided by law); and
6. proof of authorization to enter up to the date this order was published.

§ 1. Once the aforementioned documents have been submitted, an identity card shall be registered and issued.

§ 2. Should it be necessary to rectify or complete the documents presented, the Federal Police must notify the immigrant to that effect within 30 days.

§ 3. After 30 days, if the immigrant has not reported, or if documents are still incomplete, processing of the application shall be abandoned, without prejudice to the use of the documents submitted, which shall remain valid for the purposes of a new application.

§ 4. If the application is rejected, the provisions of article 134 of Decree No. 9,199 of 2017 shall apply. (Brazil 2018)

The Brazilian Visa Application Center (BVAC), managed by the IOM and the [translation] "exclusive provider of special permanent visa applications and family reunion visa applications (VIPER) in Haiti for the visa section at the Embassy of Brazil in Port-au-Prince," states on its website that temporary visas granted for humanitarian reasons are [translation] "singleentry" visas and can be "converted to permanent residence permits" at the end of the temporary two-year residency period (Brazil & IOM n.d.b). The same source provides the following information for Haitians who wish to obtain a temporary visa for humanitarian reasons:

[translation]

Upon arrival in Brazil, holders of a humanitarian visa must register at a Federal Police office within 90 days and present their original birth certificate or marriage certificate extract. In order for these documents to be valid in Brazil, visa recipients must have them legalized directly at the Embassy of Brazil in Port-au-Prince. (Brazil & IOM n.d.b)

Article 7 of the 2018 Interministerial Order provides the following:

[translation]

Article 7. Immigrants may submit an application at a Federal Police office within the 90day period prior to the expiration of the two-year period set out in articles 4 and 5. A residence permit that is valid indefinitely shall be granted provided the immigrant:

1. has not been absent from Brazil for more than 90 days during each migratory year;
2. enters the national territory and exits only via Brazil's migratory checkpoint;
3. has no criminal record in Brazil; and
4. has proof of available means of subsistence. (Brazil 2018)

According to BVAC's website, new humanitarian visas

may not be granted to those who have already had a permanent humanitarian visa under a former law, who have left Brazil with the intention of never returning or of residing in another country. (Brazil & IOM n.d.b)

Articles 8 to 10 of the 2018 Interministerial Order provide the following:

[translation]

Article 8. Haitian immigrants and stateless persons residing in the Republic of Haiti who have been granted a residence permit for humanitarian reasons are guaranteed to be able to freely carry on professional activities in Brazil, in accordance with the existing legislation.

Article 9. Immigrants to whom this order applies shall be exempt from the fees and emoluments charged for visas and migratory regularization.

Sole Paragraph. Without prejudice to the provision in the first paragraph, fees may be charged for consular services provided by third parties whom the Brazilian government has mandated to fulfill this role.

Article 10. An application for a visa or residence permit pursuant to this order may be made by the person concerned or his or her legal representative or defence lawyer. (Brazil 2018)

The BVAC website indicates that all humanitarian visa applications will be subject to a US$60 [translation] "service fee" (Brazil & IOM n.d.b).

2.3 Family Reunification

According to the website of the Embassy of Brazil in Port-Au-Prince, the application for a family reunification visa can be submitted online, after which the applicant will receive an email from the embassy if there are no issues with the documentation; the applicant must then book an in-person appointment at the embassy (Brazil 2023-05-25). However, if the family member residing in Brazil has entered the country on a humanitarian visa, the application to bring the foreign family member to Brazil for reunification must be submitted to the BVAC (Brazil 2023-05-25).

The BVAC website states the following:

[translation]

For the purposes of family reunification, an appropriate visa [which was a five-year "permanent visa" before the coming into force of Law No. 13,445 (Brazil & IOM n.d.c)] may be granted to dependants of any Brazilian citizen or foreign national over the age of 18 who are authorized to reside in Brazil.

The following are considered to be dependants:

1. Spouse (husband/wife);
2. Ascendants (father/mother), as long as the applicant (Brazilian citizen) proves their need for assistance;
3. Single children under the age of 18, or over the age of 18 on the condition that they are unable to provide for themselves;
4. Brothers/sisters, grandsons (granddaughters) or great-grandsons (greatgranddaughters) if orphans, single and under the age of 18, or over the age of 18 on the condition that they are unable to provide for themselves;

The aforementioned dependants shall be considered as such until they reach the age of 24, on the condition that they are enrolled in a higher training or doctorate curriculum, and that Brazilian nationals are treated in the same manner in the foreign national's country of origin. (Brazil & IOM n.d.d)

According to the same website, family reunification visas are also available to Haitians, including those whose family members hold a humanitarian visa, and the only fee charged is the US$60 [translation] "service fee" (Brazil & IOM n.d.d). According to the Federal Police website, residence permits granted for family reunification reasons shall be valid for the same length of time as the family member's authorization for residence (Brazil 2018-05-30).

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

[translation]

Art. 45. A temporary visa for family reunification shall be granted to immigrants who

1. are the spouse or partner [of a Brazilian citizen], without discrimination, in accordance with the Brazilian legal system;
2. are the child of a Brazilian [citizen] or an immigrant granted a residence permit;
3. have a Brazilian child;
4. have a child who is an immigrant granted a residence permit;
5. are an ancestor up to the second degree of a Brazilian [citizen] or an immigrant granted a residence permit;
6. are a descendant up to the second degree of a Brazilian [citizen] or an immigrant granted a residence permit;
7. are the sibling of a Brazilian [citizen] or an immigrant granted a residence permit; or
8. have a Brazilian [citizen] under their tutelage, guardianship or custody.

§ 1. By means of an order, the Minister of State for Foreign Affairs can determine the need for in-person interviews and for additional documents to prove the family relationship, as necessary.

§ 2. By means of a joint order, the ministers of State for Justice and Public Safety and for Foreign Affairs will establish other kinship grounds for the purposes of granting the visa mentioned in the first paragraph, as well as the requirements, terms, conditions and procedures.

§ 3. The visa holder mentioned in the first paragraph may exercise any activity in the country, including paid activities, under conditions equal to Brazilian [citizens], under the terms of the law.

§ 4. The application for a temporary visa for family reunification purposes may be filed concurrently with the application for the temporary visa of the family member petitioning [chamante] [3].

§ 5. The visa mentioned in the first paragraph cannot be granted when the petitioner [chamante] is already a recipient of a visa or residence permit for family reunification purposes or holds a provisional residence permit. (Brazil 2017a)

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. the naturalization applicant has civil capacity, in accordance with Brazilian law;
2. the naturalization applicant person concerned has resided within the national territory for at least four (4) years;
3. the naturalization applicant is able to communicate in Portuguese, and thus understand the conditions for acquiring naturalization;
4. the naturalization applicant has not been convicted of a criminal offence or received a pardon, as per the provisions of the law.

Article 66. The minimum duration of residence established in paragraph II of article 65 shall be reduced to a minimum of one (1) year when the naturalization applicant has met 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 in Brazil;
6. The applicant has been recommended for their professional, scientific or artistic skills.

Sole Paragraph. Compliance with the conditions listed in paragraphs V and VI of this chapter shall be assessed in accordance with the regulations. (Brazil 2017b)

When asked by the Research Directorate whether Haitians must be fluent in Brazilian Portuguese to qualify for residence via a family reunification visa, a lawyer and partner at a law firm in Brazil, whose practice areas include immigration law, stated that no such requirement existed for the visa or permit, and that the applicant need not [translation] "speak or have a good command of Portuguese" to qualify (Lawyer 2022-01-27).

For information on the process for family reunification visa applications for Haitians nationals with residence permits in Brazil, see Response to Information Request ZZZ201543 of July 2023.

A copy of the BVAC web page indicating the documents to provide to obtain the family reunification visa and the humanitarian visa as of June 2018 is attached to this Response (Attachment 1). A copy of the BVAC web page, dated September 2017, indicating the documents to provide to obtain the family reunification visa and the humanitarian visa under Law No. 6,815 of 1980 is attached to this Response (Attachment 2).

Sources report that, according to Normative Resolution No. 108 of 2014 [under the law of 1980], foreign-born parents of a Brazilian child may obtain a permanent visa in Brazil [that is valid for five years] (EMDOC 2015-05, 74–75; de Almeida and Viglino 2016, 4), or [translation] "permanent residence" (de Almeida and Viglino 2016, 4). A document published in May 2015 by EMDOC, an "advisory firm" in São Paulo that specializes in immigration (EMDOC n.d.), indicates that individuals who wish to obtain a permanent visa must submit their application to the Federal Police office in the area in which they reside (EMDOC 2015-05, 75).

2.4 Loss of Permanent Resident Status

Sources report that permanent residence [under Law No. 6,815 of 1980, replaced by Law No. 13,445 of 2017] is valid indefinitely (IJDH & NWIRP 2017-04-03, 8; The Rio Times 2014-08-24). In answer to the question of whether the loss of a residence permit results from an immigrant having [translation] "stayed more than two (2) continuous years outside of the country," for "reasons beyond [their] control," Brazil's Federal Police FAQ webpage states that the "immigrant who stays outside of the country for more than two years may lose their residence permit if they are absent from the country for more than two years without justification" (Brazil 2022-09-19). The website of the Consulate General of Brazil in Montreal stated the following as of September 2017:

[Brazil English version]

The Consular Authority may grant a new VIPER [five-year permanent visa] to a foreigner who once lived in Brazil as a permanent resident and then left in order to pursue or complete:

• University studies (undergraduate or graduate level);
• Professional training;
• Research activity at an institution recognized by the Brazilian Ministry of Science and Technology;
• Professional activity for the Brazilian government.

The application should be submitted directly to the Consular Office which has jurisdiction over the applicant's place of residence. The following documentation is required:

• Proof of the activities developed abroad;
• Official proof of the prior permanent residence status in Brazil until the start date of the activities abroad;
• Certificate of absence of criminal record (Police clearance certificate (non-fingerprint name check) from RCMP or local police department for applicants), and other documents required by the Consular Office. (Brazil n.d.b)

Article 135 of Decree No. 9,199, on the loss of residency under law No. 13,445 of 2017, provides the following:

[translation]

Article 135. A residence permit will be revoked in the following circumstances:

1. The original basis for the residence permit ceases to exist;
2. A residence permit has been obtained on different grounds; and
3. The immigrant has been outside the country for a period of more than two years and without presentation of a justification.

Paragraph 1 – The immigrant must notify the Federal Police whenever he or she ceases to meet the conditions of his or her residence permit during its validity period.

Paragraph 2 – The provision in item I of the introduction does not prevent the immigrant from applying for a residence permit on other grounds. (Brazil 2017a)

In correspondence with the Research Directorate, a lawyer in Rio de Janeiro practising in immigration law, among other fields, indicated that "if the person was away from Brazil for more than two years, he or she will not be able to reenter Brazil as a permanent resident" (Lawyer in Rio de Janeiro 2018-02-06). The lawyer explained that, according to Law No. 6,815 of 1980, an individual with permanent resident status in Brazil would "automatically" lose this status if he or she was absent from Brazil for more than two years, while Law No. 13,445 of 2017 provides that permanent resident status is lost when the individual is outside Brazil for more than two years "without justifying [his or her] absence" (Lawyer in Rio de Janeiro 2018-01-30, emphasis in original). According to the same source, "there is nothing [in the 2017 law] that defines what type of justification would be acceptable" for being outside Brazil that would allow permanent residents to retain their status (Lawyer in Rio de Janeiro 2018-01-30). Information on acceptable justification could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Article 11 of Interministerial Order No. 10 of 2018 provides the following:

[translation]

Article 11. The basis for the humanitarian assistance provided for in this order will be considered null and void if the immigrant leaves Brazil permanently when there is information showing that the immigrant attempted to reside in another country. (Brazil 2018)

Information on the procedure for applying article 11 of Interministerial Order No. 10 of 2018 could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

Brazil adopted Interministerial Ordinance [Order] No. 27 of the Ministry of Justice and Public Security (Ministério da Justiça e Segurança Pública, MJSP) and the Ministry of Foreign Affairs (Ministério das Relações Exteriores, MRE) (Portaria interministerial do MJSP e o MRE nº 27, de 30 de dezembro de 2021) on 30 December 2021 on the [translation] "[g]ranting of temporary visas and authorization of residency for humanitarian reasons to nationals of Haiti and stateless persons affected by major calamities or environmental disasters in the Republic of Haiti" (Brazil 2021). Effective on the day of its publication, the Ordinance provides the following:

[translation]

Art. 12. The basis for the humanitarian admission established by this Ordinance is considered null and void in cases when the immigrant leaves Brazil with the intent of doing so permanently or does so without migratory control if it gets proven, by means of information, that he or she has made an attempt to reside in another country. (Brazil 2021, bold in original)

In correspondence with the Research Directorate, a representative of the Embassy of Brazil in Ottawa stated based on item I of article 135 of Decree 9,199, and article 12 of Interministerial Ordinance MJSP/MRE No. 27, that a Haitian national who had Brazilian residency on the basis of humanitarian asylum and has moved abroad with "definitive will," shall not be returned to Brazil and must instead submit an application for a new visa (Brazil 2022-01-26). According to a chapter on corporate immigration to Brazil authored by Maria Luisa Soter and Gabriela Lessa of Veirano Advogados, a Brazilian business law firm that advises multinational companies on operating in the Brazilian economy (The Law Reviews n.d.), the residence permit "ceases once the establishing conditions" (which depend on the grounds upon which it was granted) "no longer exist" (Soter & Lessa 2021-06-07). Similarly, Gibson & Associates, a law firm based in Ireland that provides immigration services as well as other professional services (Gibson & Associates n.d.), state that permanent residence status "will expire if the holder leaves Brazil for a period of more than two years in a row" or "if residency was based on eligibility criteria," which "the holder no longer meets," such as "an investor [who] withdraws their investment" (2021-09-02).

2.4.1 Available Recourse

Article 134 of Decree No. 9,199 of 20 November 2017 provides the following:

[translation]

Art. 134. An immigrant may appeal a decision refusing permanent residence within 10 days following the date on which the immigrant is informed of the decision, ensuring the observance of the rights of the defence and of the adversarial nature of proceedings, and alternatively [application of] the provisions of Law No. 9,784 of 29 January 1999. (Brazil 2017a)

According to the embassy representative, the loss of a residence permit following an absence of over two years from Brazil "is not automatic"; rather, the permit holder, "upon re-entering Brazil, will be notified by the Federal Police and allowed to present justification" to keep their permit (Brazil 2022-01-26). The FAQ webpage of Brazil's Federal Police states that [translation] "immigrants" who remain outside of the country "without justification" for more than two years "may lose their residency permit," following which they "will be notified to present justification, and, should it be rejected, a proceeding relating to the loss of residency authorization will be initiated per article 135, item III, of Decree No. 9.199/2017, subject to the [rights of] defence and adversarial [nature of proceedings]" (Brazil 2022-09-19).

In a telephone interview with the Research Directorate, a lawyer from Pontes Vieira Advogados, a São Paulo law firm specializing in, among other fields, immigration law, stated that if permanent resident status is lost, an administrative proceeding takes place, and the client has the right to administrative recourse (Lawyer from Pontes Vieira Advogados 2018-02-01). Similarly, the lawyer from Rio de Janeiro explained that, according to the 2017 law, permanent resident status can be lost only upon completion of an administrative proceeding in which the individual has the right "to the principles of contradictory debate and ample defence" (2018-01-30).

The lawyer from Rio de Janeiro stated that an individual who has lost permanent resident status has 10 days to present his or her defence at the administrative proceeding (2018-01-30). According to the same source, if permanent resident status is declared lost, the individual has 10 days to appeal the decision (Lawyer in Rio de Janeiro 2018-01-30). The same source added that "the procedures for the administrative proceeding for loss of residence [status] have yet to be established in the norm to be issued by the Ministries of Justice and Labour" (Lawyer in Rio de Janeiro 2018-01-30). The lawyer from Rio de Janeiro noted that these norms will also establish the conditions for appeal of judgments (2018-02-06). Regarding the possibility of contesting the judgment rendered on appeal in the administrative proceeding, the same source stated that, "in principle," there is no available recourse, but it remains to be seen whether the standards to be issued by the Ministry of Justice and the Ministry of Labour will confirm this (Lawyer in Rio de Janeiro 2018-02-06). Further and corroborating information on current practices regarding administrative recourse options could not be found among the sources consulted by the Research Directorate within the time constraints of this Response.

3. Identity Documents for Foreign Nationals
3.1 Documents Issued to Asylum Seekers

The document by the IJDH and NWIRP explains that, according to article 21 of Brazil's Law No. 9,474 [4], a person who applies for refugee status in Brazil will receive a provisional ID document (a "refugee protocol"), a temporary work permit and a taxpayer ID number (Cadastro de Pessoas Fisicas, CPF) (IJDH & NWIRP 2017-04-03, 1). Similarly, an article published in July 2014 in the Cahiers migratoires n° 6 of the IOM states that applying for asylum in Brazil enables applicants to obtain a work permit and a CPF (Fernandes & de Castro 2014-07, 53).

3.2 National Migration Registry Card

According to Koetz Advocacia, a law firm based in Brazil that provides social security and immigration services (Koetz Advocacia 2017-05-08), the National Immigration Registry Card (Carteira de Registro Nacional Migratório, CRNM), a new identification document granted to migrants in Brazil that includes a unique National Immigration Registry (Registro Nacional Migratório) number, was introduced as part of the 2017 immigration legislation [Law No. 13,445, regulated by Decree No. 9,199 of 2017] and replaces the previous Foreigner Identity Card (Cédula de Identidade de Estrangeiro, CIE) (Koetz Advocacia 2020-07-16). The same source adds that the CRNM's validity period corresponds to that of the holder's temporary residence permit, unless the holder has an indefinite residence permit, in which case the CRNM is valid for nine years (Koetz Advocacia 2020-07-16).

Articles 73 and 74 of Decree No. 9,199 of 2017, which concern the CRNM, provide the following:

[translation]

Article 73. The national migration registry card includes the immigrant's period of residence in accordance with the provisions set out in the residence permit obtained.

§ 1. For the purposes of a temporary visa, the immigrant's period of residence is calculated from the date of the immigrant's first entry into Brazil after being granted the visa.

§ 2. For an immigrant who holds a Brazilian residence permit, the date from which the period of residence is calculated is the date of the immigrant's application for registration.

§ 3. If an immigrant who has obtained a Brazilian residence permit does not apply for registration within the time limits provided for in paragraph IV of article 307, the residence period starts on the expiration of a period of thirty (30) days following the date on which the decision to grant the residence permit was issued.

§ 4. In the case of temporary residence, the expiration date of the national migration registry card coincides with the expiration date of the residence permit.

Art. 74. In the case of indefinite residence, the national migration registry card is valid for nine years as of the registration date.

Sole Paragraph. In the situation set out in the first paragraph, the national migration registry card is valid for an indefinite period if the cardholder:

1. has reached the age of 60 by the document's expiration date; or
2. is a person with a disability. (Brazil 2017a)

3.3 Foreigner Identity Card

The website of the Federal Police of Brazil reports that the CIE [granted under Law No. 6,815 of 1980, replaced by Law No. 13,445 of 2017] [translation] "is the physical identity document for foreigners registered in Brazil … valid throughout the country" (Brazil 2017-09-13). The same source indicates that, under article 30 of Law No. 6,815 of 1980, foreigners admitted to Brazil temporarily, permanently, or as refugees must register with the Federal Police within 30 days of their arrival or after being granted asylum and, once registered, they are issued a foreigner identity card (Brazil 2017-09-13). Article 30 of Law No. 6,815 of 19 August 1980, which defines the legal status of foreigners in Brazil, states the following:

[translation]

Art. 30. An alien who enters the country as a permanent resident, or temporary resident (sub-paragraphs I and IV to VI of art. 13) or as a political refugee shall be obliged to register with the Ministry of Justice within thirty days as of his/her entry, of the granting of the refugee status (asylum), and to identify himself/herself by fingerprinting in accordance with the regulatory provisions. (Wording based on Law no. 6964 of 12/09/81). (Brazil 1980, parentheses and italics in original)

Article 2 of Decree No. 2,236 of 23 January 1985 (Decreto-lei no 2.236, de 23 janeiro de 1985), concerning the [translation] "foreigner identity document," provides the following: "The foreigner identity document shall be replaced every nine years, starting from the date of issuance or the date of extension of stay" (Brazil 1985). The EMDOC document indicates that CIEs always have a period of validity, "even in the case of [foreigners] who already have a permanent residence permit" (EMDOC 2015-05, 78). The website of the Department of Justice of Brazil (Ministério da Justiça) indicates that foreigners with permanent status have a CIE valid for a period of nine years and that they must renew their CIE before it expires (Brazil n.d.d). The EMDOC document states that "as a rule, the [CIE] must be changed and the registration renewal must be done every nine years," thereby allowing the government to monitor foreign nationals living in Brazil (EMDOC 2015-05, 78).

According to the same source, the National Registry of Foreigners [Registro Nacional de Estrangeiro, RNE] was created as a means to register all foreigners residing temporarily or permanently in Brazil, and enrolment in this registry is "what will prove the effective residence of the foreigner" in Brazil (EMDOC 2015-05, 77-78). The same source indicates that the purpose of the RNE is to identify foreigners by their personal information, such as "name, nationality, date and place of birth, name of the parents," and by their fingerprints (EMDOC 2015-05, 77). According to the website of the Federal Police, the CIE contains the RNE [translation] "alphanumeric number" (Brazil 2017-09-13).

Article 2, paragraph 1 of Decree No. 2,236 of 23 January 1985 provides the following:

[translation]

Foreign nationals holding a permanent visa who have previously completed a registration renewal and who

1. have reached 60 years of age by the date of expiration of the identity document; (clause added by Law No. 9.505 of 15/10/1997)
2. are physically disabled, (clause added by Law No. 9505 of 15/10/1997)

shall be exempt from the replacement required under this article (single paragraph added by Law No. 9.505 of 15/10/1997). (Brazil 1985)

In September 2017, the website of the Federal Police indicated the following:

[translation]

Foreign nationals holding a permanent visa who previously completed a registration renewal and who have reached 60 years of age at the time of the card's expiry date or who are physically disabled shall be exempt from the requirement to replace the CIE, including after the card's expiry date. (Brazil 2017-09-13)

According to the website of the Federal Police, those individuals can, if they so wish, replace the CIE with a CIE valid for an indefinite period [translation] "by paying a fee" (Brazil 2017-09-13).

The EMDOC document indicates that according to "Ordinance Number 2524/2008 of the Ministry of Justice," foreigners aged 51 years and older at the time of registration and disabled persons of any age shall receive a CIE that is valid indefinitely (EMDOC 2015-05, 78). An article published on the website of Rolim, Viotti and Leite Campos (RV&LC), a law firm whose offices are located mainly in Brazil (RV&LC n.d.) and which deals with the issuance of CIEs to foreigners aged 51 years and older and to disabled persons, reports that:

This Ordinance [No. 2524 of 2008] sets forth that CIE with unlimited validity shall be issued to foreigners permanently resident in Brazil (i) who are 51 or more years old at the time of the registration and (i) who are handicapped, of any age.

The Ordinance also allows foreigners permanently resident in Brazil, holders of CIE with limited validity and over 60 years old, to require, without any burden, the replacement of their CIEs in the nearest unity of the Federal Police (RV&LC 2009-02-02)

4. Permanent Residence Granted

A joint ministerial act from the Ministry of Labour and Social Security and the Ministry of Justice states that, considering that CNIg invoked, under Normative Resolution No. 97, [translation] "humanitarian grounds to justify the immigration of Haitians following the earthquake of 12 January 2010 in Haiti," the Haitian citizens whose names are on the list attached to the communiqué were granted "permanent residence" (Brazil n.d.c).

According to the IJDH and NWIRP document of April 2017, the ministerial act was signed in November 2015 (IJDH & NWIRP 2017-04-03, 2). Sources explain that the 43,781 Haitian nationals authorized by the ministerial act arrived in Brazil in the last five years, but could not be accepted as refugees (HaïtiLibre 2015-11-12) or applied for refugee status in Brazil between January 2011 and July 2015 (Folha de S. Paulo 2015-11-11). An article from November 2015 in the newspaper Folha de S. Paulo, a Brazilian daily, reports that previously permanent residence could only be requested by Haitians who arrived in Brazil with the humanitarian visa created in 2012 and issued by the Embassy of Brazil in Port-au-Prince (Folha de S. Paulo 2015-11-11).

However, the April 2017 IJDH and NWIRP document indicates that Haitians who applied for refugee status prior to 13 January 2012, the effective date of Normative Resolution No. 97, are also affected by the ministerial act (IJDH & NWIRP 2017-04-03, 2). According to that same source, in order to apply for permanent residence through this process, the Haitians must submit to the Brazilian authorities: "a photo, a birth or marriage certificate translated by a sworn translator, or a consular certificate, a negative certificate of criminal record issued in Brazil [showing that no crime was committed in Brazil], and a statement that they have not been prosecuted criminally in Haiti," as well as proof of payment of the registration fee and the issuance of a CIE (IJDH & NWIRP 2017-04-03, 2). The same source states that Haitians had one year from the effective date of the ministerial act to apply for permanent residence and that, according to the Ministry of Labour, 31,223 Haitians had completed the procedure as of January 2017 (IJDH & NWIRP 2017-04-03, 2-3).

According to Agência Brasil, a national news agency, the Brazilian Ministry of Justice extended the deadline to 11 May 2017 for Haitians [translation] "who entered Brazil after the earthquake that devastated Haiti in 2010" [and were subject to the ministerial order] to apply for permanent residence (2016-11-11). According to the same source, the individuals concerned must pay 106.45 Brazilian reais (BRL) [approximately C$36] in administrative fees and 204.77 BRL [approximately C$69] for the CIE that is issued to them (Agência Brasil 2016-11-11).

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] The article published on the IMDH website was written by Duval Fernandes, Coordinator of the Higher Studies Program in geography at the Pontifical Catholic University of Minas Gerais; Rosita Milesi, lawyer and director of IMDH; and Andressa Farias, who holds a master's degree in geography from the Pontifical Catholic University of Minas Gerais (IMDH 2014-01-20).

[2] The article titled "La migration haïtienne au Brésil : résultat de l'étude à la destination" was written by Duval Fernandes and Maria da Consolação Gomes de Castro, Researcher in the Higher Studies Program in geography at the Pontifical Catholic University of Minas Gerais and professor in the Department of Social Service at that same institution (Fernandes & de Castro 2014-07, 51).

[3] In the context of residency authorization for family reunification, Brazil's Ministry of Justice and Public Security (Ministério da Justiça e Segurança Pública) defines a chamante (petitioner) as [translation] "a Brazilian (or immigrant who already has residency authorization) with whom the actual applicant for residency authorization seeks family reunification" (Brazil 2021-08-13).

[4] 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)

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Additional Sources Consulted

Internet sites, including: Amnesty International; Austrian Red Cross – ecoi.net; Brazil – Instituto Brasileiro de Geografia e Estatística, Ministério da Educação; Factiva; Felsberg Advogados; Human Rights Watch; International Crisis Group; Laws of Brazil; Migration for Development and Equality; National Public Radio; The New Yorker; Organisation for Economic Co-operation and Development; Reuters; Sietar Brasil; União Social Dos(a) Imigrantes Hatianos(a); UN – OHCHR, Refworld, ReliefWeb; United Nation University – Centre for Policy Research; US – Department of State.

Attachments

1. Brazil & International Organization for Migration (IOM). N.d. Centre de réception de demandes de visas pour le Brésil (BVAC). "Renseignements sur la demande de visa." Translated into English by the Translation Bureau, Public Services and Procurement Canada. [Accessed 2018-06-06].
2. Brazil & International Organization for Migration (IOM). N.d. Centre de réception de demandes de visas pour le Brésil (BVAC). "Renseignements sur la demande de visa." Translated into English by the Translation Bureau, Public Services and Procurement Canada. [Accessed 2017-09-18].