Migration flows in the contemporary world: an analysis of the Brazilian migratory policy

Transcription

1 Migration flows in the contemporary world: an analysis of the Brazilian migratory policy Historically, it was phenomenon of immigration has always happened. Currently, however, there are increasing initiatives to reduce some patterns of this flow. This paper aims to analyze how the Brazilian state deals with this phenomenon: Which profiles of immigrants can be described? Which ones are accepted, which ones are repelled? By whom? Moreover, the issue of immigration refers to both a sociological inquiry as a legal analysis. At first, we observe the Brazilian legislation for migration, defining the concept of legal alien, their rights and what is the Brazilian immigration policy, to, subsequently, undertake a comparative analysis with the other countries in South America. This will establish a parallel between the recommendations of the National Program for Human Rights and the Brazilian bills that regulate the rights of the immigrants in national soil. Sociological analysis will be used to understand the categories that govern this area, this dynamic. How is the construction of immigrant identity built, what are their expectations? How does the articulation of legal and sociological sphere acts? The research methodology is based on analysis of primary and secondary data, such as specific legislation, statistics and academic texts. Key-words: Migration; Brazilian migratory policy; discrimination against migrants. This paper was done by Camila Soares Lippi, Carolina Genovez Parreira, Cecília Soares and Verena Dolabella, members of the research group Migration flows in the contemporary world, under the orientation of Vanessa Oliveira Batista, being a part of LADIH (Laboratório de Direitos Humanos/UFRJ)

2 Introduction The migratory movement represents the continuous displacement of individuals, determined by several factors, such as social, religious, political or economical. The migration also has a rather explicit social nature and has been practiced in several key moments in history, in many ways. Two of the most emblematic ones are the Jewish Diaspora, and the nomadic characteristic of some people 1. Today, it is understood by "migration" a complex displacement motivated by additional factors, not just a disposal of each social group to go to another territory. There may be an adventurous nature in the displacement, as in the case of American settlers, responsible for increasing the country's borders 2. Thinking about "migration" currently refers therefore to the perception of migrants and organs involved in the issue, in some contexts, as invisible. We must therefore distinguish between the innumerous reasons for migration, and establish the flow drawn by groups of people to understand their behavior (both the flows and the people who compose them, and the places that receive them). This right to come and go is an individual right, guaranteed by Article XIII of the Universal Declaration of Human Rights. But there is a limitation of submitting to the sovereign power of states, which can decide on the admission of foreigners into their territory. The aims of this article are: analyzing the current tendency of countries closing their borders to foreigners; studying the changes brought with the Draft Law nº 5655, that provides a new Brazilian Foreigners Statute; and comprehend the consequences of this restriction to the people and the countries involve. In Brazil, immigration is regulated by Law nº of 1980, also known as Foreigners Statute. This Law does not provide a definition for immigrant, neither for foreigner, and considers, mostly the case, whether the immigrant or foreigner is integrated to our nation-state. It is possible to distinguish, from the analysis of Preuss (2008), between nationality and citizenship, that means, different ways of belonging to a society based on a nation-state, provided with legal regulation. So, the foreigner can belong to a nation because of his/her ancestry (the jus sanguini in effect, for example, in Germany and Switzerland), or according to the place of birth (jus soli as in Argentina). Brazil accepts both situations, by article 12 of the Constitution of 1988, which regulates the assignment of nationality of that Federal Republic, whether original or derived, thus ensuring a "mixed criteria of allocation." Anyone who does not fit the assumptions in that article can be classified in the category of immigrant or alien. The issue of nationality has implications on the question of citizenship, meaning that the possibility of interfere in the political community which one belongs to. Not everyone holding a nationality is thus totally a citizen: voting, for example, is banned in Brazil for people younger than 16 years. The search for a new nationality complements therefore a possibility of change within the social environment - to welcome foreigners, so, involves discussing whether this category may reach the status of full members of that community. The range of possibilities provided to the foreigners while present in another nation-state is particularly explicit in 1 The anthropologist Marcel Mauss wrote a pioneer analysis of nomadic Inuit, published in Essay on the seasonal variations of Inuit society in 1906 (MAUSS, 2005). Besides of the reference of the ethnological practice, this been the study of lifestyles of a society, it suggests broad clues to the understanding of nomadism as a characteristic constituent of the society in question. 2 A good suggestion about the U.S. intranational migration is found in the concept of "moving frontier developed by Frederick J. TURNER.

3 the several types of visas: for example, to different people, who occupy different work positions, are not allowed the same rights (although fulfilling the same duties as precisely, foreigners). For example, in Brazil, a foreigner, even if naturalized, can t be a member of the Army (article 12, par. 3, VI, Constitution of 1988). Although still valid, the Foreigners Statute (Law nº 6.815/1980) was approved during the João Figueiredo s government, at the end of Brazilian dictatorship, and basically seeks to protect the national interest, as provided in its first three articles. So, even being aftermost the Universal Declaration of Human Rights, the Statute is not based on protecting the civil rights. Rather, it is not hard to the government if it disrespects the rights of a foreigner in Brazil, claiming that he/she is considered a threat to national security. One example is that a major restriction faced by an alien in Brazilian territory is his/her disability to participate in any political activity or association. That happens because the Army, during the military dictatorship, figured that, by preventing foreigners from expressing their political views, they could not spread socialism or democracy. It is also permitted to the Administration to expel any foreigner at any time, without term for him/her to appeal or deadline to leave voluntarily the country if he/she or any member of his family presents a risk to society. Also, although it is guaranteed that the alien has the same duties and rights of nationals, the Statute provides several exceptions and barriers to exercise those rights. Therefore, it is clear that the Brazilian permanent visa does not confer any rights to foreign, but a mere expectation of rights, which may be revoked or not granted at any time. The visa would only be a condition of admission on national soil. The visa is an administrative act of a discretionary nature. Denying a grant ensures the possibility of administrative appeal, observing the due process of law and contradictory. When those conditions are not obeyed, the administrative acts may be revoked by judicial control. In Brazil, the permanent visa is not easy to be granted, requiring that the foreigner proves he/she has a work at a certain activity and has a permanent residence. But when the Foreigners Statute mentions a certain activity, it does it in order to provide skilled labor (art. 16, sole paragraph) that will help the Brazilian economy to develop. There is also a forecast to be granted permanent residence to foreign investors who have investment projects that include the creation of at least ten new jobs, or even an investment equal to or exceeding R$ 200,000 (two hundred thousands reais). This nationalization of the work was clearly supported by Getúlio Vargas 3, who thought that the entry of foreigners in Brazil was one of the causes of unemployment in the country. Bearing it in mind, Vargas issued the Decree n º 19482/1930, which limited the entry of foreigners who were preferentially going to the field to provide agricultural services, and determined that all employers had to maintain the percentage of two thirds of Brazilians and one-third of foreigners in its staff. This rule was maintained in the Constitutions of 1934, 1937 and 1946 and consolidated in the CLT 4 in its articles 352 to 358. Only with the Decree n º /1968, which confirmed the terms of ILO Convention nº 111, that rule was revoked, because the convention prohibits differential treatment between nationals and foreigners in matters relating access and maintenance of work. 3 President of Brazil in two periods. The first one was from 1930 to 1945; and then in a democratically elected term from 1951 until his suicide in Consolidation of Brazilian Labor Laws (CLT Consolidação das Leis Trabalhistas). Issued in 1943 is the main Statute regulating labor rights in Brazil.

4 This Law, however, should not be in effect for much longer, since it was proposed The Draft Law 5655 (hereafter PL. 5655), which provides a new Foreigners Statute, based on the 1988 Constitution. It states that its application: "must be guided by the national migration policy, guarantee of the human rights, national interests, socioeconomic and cultural preservation of democratic institutions and strengthening of international relations. The national migration policy will contemplate the adoption of measures to regulate migration to protect the human rights of migrants, especially because of abusive practices arising from irregular immigration status." 5 Of course the national interests are still protected, as the PL contains a prohibition of the political participation of the alien. The Draft Law gives prioritizes the admission of skilled labor (notorious knowledge in its professional area, and the possibility to provide relevant services to the country), appropriated to various sectors of national economy and social, cultural, science and technological development in Brazil, seeking always to avoid the replacement of the national workforce. As it can be seen, the Brazilian PL converges with most of the Immigration laws around the world nowadays. Migration issues through the Brazilian foreign policy standpoint The migratory policy in Brazil can be analyzed through the standpoint of Brazilian foreign policy history, especially when this foreign policy deals with human rights. Amado Luiz Cervo and Clodoaldo Bueno propose three historical phases of Brazilian foreign policy on human rights. The first phase began with the preparatory works of the Universal Declaration of Human Rights of 1948, with activism on the promotion of human rights, engaging in multilateral forums to protect those rights (CERVO, BUENO, 2008, p. 466). The second phase, starting in the 1960s, due to a rupture under the military regime, Brazilian foreign policy abandoned the effort of the previous phase, adopting defensive and isolationists attitudes in the aforementioned multilateral forums (CERVO, BUENO, p. 466). This explains the speech of defending the national interest adopted in the Statute of Foreigner. When everything is done in the name of national interest, an alien may be prevented from leaving the country if his/her presence characterizes a risk to the country. This criteria seems to be very subjective: what does national interest mean? Thus, the criteria for measuring if an alien is harmful to the country or not depends on the social context in which Public Administration is included. At the time the Statute was adopted, the government's main objective was to prevent a communist advance in Brazil, considering the fear that the Cold War brought. The third phase of the Brazilian foreign policy on human rights began with the democratic transition, led by the Brazilian jurist Antônio Augusto Cançado Trindade, a legal adviser in the Brazilian Foreign Relations Ministry on the 1980 decade. In this phase, Brazil began again to play an important role in the field of human rights. This phase gained continuity in the Lula government, but with a new feature: the multilateralism of reciprocity. This reciprocity was placed when the rules of the multilateral order brought benefits to all nations (CERVO, BUENO, p ). 5 Articles 1 and 2 of PL Author translation.

5 Although the Brazilian diplomacy develops the concept of multilateralism of reciprocity from the trade and security, it is extended to all areas of international relations. The concept involves, according to Cervo and Bueno, two acceptances: the existence of rules that compose the international order, which prevent the disparity of power in favor of great potencies; and the joint elaboration of these rules, in order to ensure that effects are also reciprocals, so that they don t conduct interests of some over others (CERVO, BUENO, p. 497). "Reciprocity," according to the author, "is established when the ordering rules benefit all nations. (CERVO, BUENO, p. 496). The multilateralism of reciprocity, also according to Cervo, "eliminates two theoretical utopias to understand the foreign policy of Brazil: the hegemonic stability and the necessary link between the foreign policy and the political regime. (CERVO, BUENO, 2008, p. 500). In the theory of the hegemonic stability, according to the author, the international order was founded upon the hegemonic power (the U.S. in the post-cold War) with the subservience of others, and the consequent blurring of the multilateral agencies. But quoting Badie, Cervo and Bueno state that a theory of hegemonic instability would have the same effect, given the opposition of this hegemony through the anti-americanism and terrorism, mark of the beginning of the XXI century. Since hegemony has not generated order, only multilateralism can preserve it from the selfishness of nations, according to the Brazilian foreign policy. Thus, "the ideal order is the multilateral order. (CERVO, BUENO, p. 497) The Brazilian foreign policy for human rights in the XXI century has also been presented as a critique of the unjust or without reciprocity international order. According to Cervo: "The human rights were seen by the North from the collection of ideas associated to the liberal revolutions of the XVIII century, incorporated into the UN declaration of Since World War II, this strand of political philosophy inspired by the realism of the international relations theory and political practice that gives States hegemony in the path of the global order in terms of interests and power, rather, the interests of those who states the power, away from the moral precept. Such realism: also criticized in the north, is inconsistent with the Brazilian view, which for decades associate human rights with development, and with Lula, to the fight against poverty and hunger (Ibidem. Author translation). Cervo exemplifies this with the actions of President Lula himself on Brazilian diplomacy: in the sessions of the UN General Assembly in which he attended, as well as meetings of world leaders on other multilateral bodies, Lula "exposes the Brazilian version of the unjust order, that passes on the flagellum of hunger and disease, injuring the human rights (CERVO, BUENO, p Author translation). Internally, it acts with social programs; in external, through cooperative programs with the poorest countries, mainly from Africa (Idem). Based on this, we must question if such programs of cooperation with the poorest countries are a way to keep migrants from those countries in their places of origin. Implementation of international treaties on migration in Brazil

6 The internalization of treaties in Brasil, according to Vanessa Batista, Luciana Boiteux and Thula Pires, occur in four phases: the signature by the Chief of Government; the approval of a Decree by the Congress about the document, the ratification by the President; and the promulgation and publication of the treaty (BATISTA, et alli, 2009, p. 20). The paragraph 3º of article 5º of the CF/1988 (added by the Constitution Amendment nº 45 of 2004) changes the procedure of internalization of human rights treaties, stating that they must be approved in two shifts, in each house, by qualified quorum of and three fifths of the votes in each ballot so that they have Constitutional Amendment status (BATISTA, et alli, 2009, p. 24). So, that change seeks to strengthen the implementation and applicability of human rights treaty within the Brazilian territory, not accepting interpretations that can restrict their effectiveness. In conformity to that procedure, Brazil ratified most of the several international conventions on matters relating to immigration and immigrant labor. The Convention on Migrant Workers (Convention nº 97) of the ILO, ratified in Brazil in July 14, 1966 by Decree nº 58819, establishes, among other things, the provision of adequate medical services for immigrant workers and their families, social security and, especially, a treatment that could be at least as favorable as that given to nationals. Its Article 6-A guarantees the immigrant workers right to participate in trade unions. Although the Convention has been ratified before the elaboration of Foreigners Statute of 1980, this Law expressly prohibits in its art 106, VII, the participation in the public administration or representation in trade unions or professional associations, as well as the supervisory bodies of the exercise of regulated profession 6. Brazil has also ratified ILO s Convention nº 111 concerning Discrimination in Respect of Employment and Occupation, which ended with the already mentioned two thirds law, valid in Brazil since Getúlio Vargas government, preventing any discrimination related to employment and occupation, having the foreign and the national the same employment opportunities. It is easy to understand that our policy of protecting Brazilian workers is a way to hide discrimination, because at the same time that foreigners should have the same employment opportunities as nationals, the Brazilian Government reserves the right to prohibit the entry of immigrants who may represent the replacement of national labor. If foreigners and nationals should be able to compete for the same jobs and professions, why Brazil, in its Foreigners Statute and in the PL. 5655, allows the selection of workers based on skills and qualification? The International Convention on the Protection Rights of All Migrant Workers and their Families, adopted by the UN on December 18, 1990, is a great progress in legal protection of foreigners, recognizing their rights as human beings, regardless of whether they are documented or not. This Convention ensures all immigrants, regardless of their legal situation, are people with rights that must be respected by their countries of destination, since one principle governing the international legal system is respect for dignity of the individual, a principle that is reflected on the immigrant's right to leave any State, including their of origin and not to suffer any discrimination or restriction on their nationality. Although entered into force, because of ratification by more than 20 countries, that treaty is only binding to the countries that are signatories. The International Convention on 6 Author translation.

7 the Protection Rights of All Migrant Workers and their Families is a document that represents a breakthrough in recognizing the rights of the immigrants, especially with the current tendency to restrict immigration. But Brazil did not ratify it, because its policy is in favor of restricting the migratory flows, with a discriminatory character, that seeks mainly to disable the access of immigrants to jobs that the government only reserves for its nationals. All the treaties of international cooperation in which Brazil is part have their foundation on the principle of cooperation among nations, according to the Constitution: Article 4º - The Federative Republic of Brazil is governed in its international relations by the following principles: (...) IX - cooperation among nations for the progress of mankind; (...) 7 As stated by Tupinambá Miguel C. do Nascimento: "to cooperation given in item IX of the article under discussion is finalistic. There is cooperation with the objective of achieving the progress of humanity. It isn't a simple cooperation, is the act of cooperating highly positive. (1997, p Author translation) One world trend with the globalization is the weakening of the barriers between nations, because, increasingly, there is a greater circulation of people and goods in society. The globalization phenomenon appears as a complex, multifaceted, fully exploited one. From the adoption of the globalization bias, it is possible to deepen the concept of borders, to understand the interaction between countries under a particular perspective. As the migration flows are not restricted to the territorial boundaries of a country, this principle becomes important, because nations should offer cooperation to other countries, maintaining an open system of information exchange. There is, especially when talking about human rights, the need for ratification of the treaties that deal with this subject, so that current violations can be dealt with, and try to disseminate the policy of protecting basic rights. Therefore, it configures extremely important that mutual cooperation among countries, especially on this issue that knows no borders and grows day by day, like migratory flows, in the inverted proportion of the protection of those immigrants, which becomes scarcer and rigid. standpoint Analyzing Brazilian migratory legislation through its economic history A chronological analysis of the political situation is very enlightening to explain the changes in the legislation related to immigrants. It is possible to draw a relationship between social, political and economic values of a period. The change in legislation is guided by changes in political circumstances: in Brazil, with Getúlio Vargas, there was the valuation of labor and national protectionism in relation to unemployment and it persisted until the government of João Baptista Figueiredo ( ). This govenrnment aimed to 7 Author translation.

8 protect national interests and especially, national sovereignty, which acquired undeniable value on the period of military dictatorship. Therefore, it is necessary to take into account the significant contextual issues that come with every change on the acceptance, or refusal of foreigners, in the modification of visas. In the case of pre-vargas, Brazil appeared as a country to be built, based on a massive agro export policy, and, furthermore, in the need of skilled rural workforce 8. Prado Junior contributes to sketching the national profile by explaining that Brazil, unlike the first interpretations composed by the left wing, was born as a capitalist country. The whole national agriculture would thus be organized in this kind of system, and the payoff of the rural workers was shown as one end of the chain. Prado Junior then exposed that the country didn t need a redistribution of the territories, but some improvement of the industry. On the other hand, the countries of origin of the incoming workers suffered acute shortages - Italy, particularly, suffered from hunger and misery of peasant. With the substitution of industrialization procedure fostered by Vargas, and the shift of focus towards larger cities, the coming of more rural workers was not included in the ambitious projects that would transform the country in long term 9. And yet, the country had already received strong waves of immigrants, in particularly Eastern Europeans and Japanese. Besides that, the 1988 Constitution emerged in the context of post-dictatorship, post-financial oil crisis, and pre-neoliberal, with inflation impending. In addition to the economic context, migrations waves now would lead to urban contexts, to already saturated territories in big cities - not to forget that Brazil has suffered a large internal migration, particularly from the Northeast region of the country to the Southeast one 10. Brazil s colonization started, indeed, from the coast, where Europeans arrived from expeditions, either particular or financed by a Royal State, such as Portugal or Spain. Although the territory was already the living region of indian tribes, most of them perished under the hands of European, or through the diseases brought by the newcomers. Those who survived were turned into slaves. The indian tribes were, in their most part, of nomad habits. The first urban settlements were build by European hands and the conquest of such settlements were of high importance to consolidate the power of the different nations interested in exploring the new land. The story of the Northeastern region of the country starts with the story of the sugar exploitation as the first investment in the new land. Only two regions of the new territory actually did manage a good sugar production, which brought the (in time, future) country to have important coast spots, in the figure of harbors, and increasing exchange flows between the Recife harbor, the Salvador (at the time, the capital of the country) harbor and the Rio de Janeiro harbor. These commodities exchanges quickly turned into migration flows. Through the centuries, the Northwestern region of Brazil turned into a region of poor rural exploitment, and few urban spots, Recife being the major metropolis. The Southeastern region concentrates today the biggest cities of the country and most of the modern infra-structure. The migration flow between these two 8 Caio Prado Junior presents a classic analysis of the goals and strategies to economic development of Brazil since colonial times in his extensive bibliography. For further information: Formação do Brasil Contemporâneo (PRADO JÚNIOR, 1942) and A Revolução Brasileira (PRADO JÚNIOR, 1966). 9 The Brazilian economy, before the 1929 crisis, was a huge agricultural products exporter, and imported the industrialized countries. With the 1929 crisis, agricultural products prices deteriorated, and the industrialized products Brazil imported had their prices increased. Then, a substitution of importations procedure was triggered by the government (FURTADO, 2007, p ). 10 This traditional flow of migration on the country has now a different trend: there is a strong movement within the Northeast itself, and part of the population also transfers to the North. Such trends are endorsed by the numbers provided in the National Household Sample Survey of the IBGE, 2007.

9 regions posesses therefore an historical background that maintained itself also because of economic disparities between the territories. In 2010, there were severe restrictions on access to permanent visa in Brazil. The profile of the migrants, however, is no longer the same: most of it was composed, since the 1990 decade, by refugees, instead of families searching for job opportunities. On the other hand, that acceptance of foreigners appeared as a State policy, which is governed by the Labor Ministry. In financial terms, how much costs in maintaining an alien? What is the contribution of the place of origin in this transfer, what are the guarantees that links him to his/her own country? In the context that the Welfare State is much dismantled, it is difficult to ensure that living conditions are available even to locals. In Europe, restriction to migrants began with the dismantle of Welfare State and the rise of neoliberalism. During the Welfare State period, the full employment policy made Europeans not wanting to perform certain tasks they considered as with a lower status, which demanded less skilled workforce. Then, migrants from underdeveloped countries were welcome in Europe to perform those tasks, which the Europeans needed, but that they refused to take (BÜCKER, 2001, p. 1). In Brazil, in opposition, there has never been a Welfare State. Probably this explains the continuing policy of refusing under skilled workforce from outside the country, since the Brazilian population could perform it, and needed those jobs. Brazil always needed skilled workforce. Conclusion Since the Second World War and, the individualist and patrimonial dogmatic of the Civil Law seems inappropriate for the contemporary multicultural reality. Currently, therefore, the value of cooperation, multilateralism and reciprocity in international relations are the common thread of a change in legislation. It remains to understand if these values are enough to change some principles that aim the protectionism on this legislation (which are the result of its historical contexts) or are just political maneuvering to adapt to an international legal framework that enables the Brazilian earn credibility with international organizations and the other states? This indicates that both the current Statute of Foreign as the PL 5655 seek to allow only the entry of foreigners that will not risk the government and that will be qualified labor in our economy, excluding those who are looking for a better life, but that didn't have, in their countries of origin, conditions to achieve an appropriate vocational training. So, although every human being has the right to come and go, guaranteed by the Universal Declaration of Human Rights, countries like Brazil restrict this fundamental right because of social and economic factors. Bearing it in mind, we need a change in the contemporary immigration policies, so that the Brazilian government start to adopt as a fundamental principle the respect for dignity of the human being and equality, ending the discriminatory character currently in force, as provided by the Brazilian Constitution.

10 Bibliography BATISTA, Vanessa, et alli. A Emenda Constitucional n.º 45/2004 e a constitucionalização dos tratados internacionais de direitos humanos no Brasil. Série Pensando o Direito. Secretaria de Assuntos Legislativos do Ministério da Justiça. nº 5, BRÜCKER, Hebert, et alli. Managing Migration in the European Welfare State. June Available in: Access on January 12, CANÇADO TRINDADE, Antônio Augusto. Tratado Internacional de Direitos Humanos, vol. I. Porto Alegre: Sergio Antonio Fabris Editor, 2003, 2ª ed.. Tratado Internacional de Direitos Humanos, vol. II. Porto Alegre: Sergio Antonio Fabris Editor, 2003, 1ª ed.. Tratado Internacional de Direitos Humanos, vol. I. Porto Alegre: Sergio Antonio Fabris Editor, 2003, 1ª ed. CERVO, Amado Luiz; BUENO, Clodoaldo. História da política exterior do Brasil. Brasília: Editora UNB, FRAGA, Mirtô. O Novo Estatuto do Estrangeiro Comentado. Rio de Janeiro Forense, FURTADO, Celso. Formação Econômica do Brasil. Companhia das Letras, MAUSS, Marcel. Ensaio sobre as variações sazonais das sociedades esquimós. MAUSS, Marcel. Sociologia e Antropologia. São Paulo: Cosac & Naify, NASCIMENTO, Tupinambá Miguel Castro do. Comentários à Constituição Federal: princípios fundamentais. Porto Alegre: Livraria do Advogado, PRADO JÚNIOR, Caio, A Formação do Brasil Contemporâneo, São Paulo: Editora Brasiliense, PRADO JÚNIOR, Caio, A Revolução Brasileira, São Paulo: Editora Brasiliense, PREUSS, Ulrich K. "Migration - a Challenge to Modern Citizenship". Constellations Journal, New York, v. 4, Number 3, p , dez Available in: CRETRY=1&SRETRY=0. Access in July 10th, 2010.