The judicialization of the entry of Haitians into Brazil

Abstract

Due to the systemic and institutional failure of the State resulting from the subsequent socio-political erosion, Brazil is currently the sixth largest host country for Haitians in the world. The key issue is that, even though they can be received as refugees, these migrants have been granted a visa, whether permanent (Law 6.815/80) or temporary (Law 13.445/17), of a humanitarian nature. While this category may sound beneficial, it does not actually grant them more specific rights. Furthermore, it also does not exclude the possibility of applying other immigration institutions, such as family reunification, as provided for in the 2017 Migration Law. Many migrants with family members in Brazil are unable to reach the country for various reasons, ranging from issues related to Brazilian bureaucracy to issues related to violence and corruption, giving rise to a series of lawsuits in Brazil seeking an exception to the visa requirement for their entry. This is what this text intends to discuss, above all, addressing the current dubious position of the Judiciary in relation to this topic. To this end, deductive research is carried out, which will be analyzed through explanatory and descriptive procedures, and developed through bibliographical, documentary, and jurisprudential techniques – the latter limited to the analysis of three cases (Public Civil Action No. 5030761-05.2023.4.04.7200/SC, tried by the TRF4; Common Civil Proceeding No. 5007952-50.2023.4.03.6100, tried by the JFSP; and the Petition in Extraordinary Appeal No. 1,499,394/SC, tried by the STF). Ultimately, it is concluded that the judicial route does not yet prove to be a route that guarantees the expected and necessary legal certainty for the matter, as sometimes it is decided to grant it; sometimes not, depending largely on the arguments developed around the impossibility of verifying documents of people in Haiti, and the alleged rights themselves, such as the best interests of the child and family protection.