Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Migration for Employment Convention (Revised), 1949 (No. 97) - Brazil (Ratification: 1965)

The Committee notes the observations of the International Organisation of Employers (IOE) and the National Confederation of Industry (CNI) received on 30 August 2022.

Measures addressing the situation of migrant workers during the COVID-19 pandemic. The Committee welcomes the Government’s indication, in its report, that a number of measures were adopted to address the situation of foreign workers during the COVID-19 pandemic in particular by: (1) extending until 15 March 2022 the deadline for immigrants residing in Brazil to regularize their residence permit and temporary visa registration that have expired since 16 March 2020 (Ordinance No. 25 of 17 August 2021); and (2) assisting in the repatriation of Brazilian citizens who were not able to return to the country. The Committee requests the Government to provide information on the implementation and impact over time of the specific temporary measures adopted in the context of the COVID-19 pandemic on the situation of migrant workers.

Article 1 of the Convention. Migration flows. The Committee notes that, in their observations, the CNI and the IOE highlight that Brazil is a country with a tradition of welcoming migrants and refugees while guaranteeing proper documentation for regularization and access to the labour market, including in the recent years Haitian, Venezuelan, and Syrian immigrants. In that regard, the Committee notes the Government’s indication that, according to the National Committee for Refugees (CONARE), more than 807,000 migrants, out of whom 43,000 have refugee status, are currently registered in the country. According to the 2021 and 2022 annual reports from the Observatory of International Migration (OBMigra),there has been an intensification of the immigration flow over the last decade. The Committee notes that, while the number of registered long-term resident Haitian migrants has shown a progressive increase since 2010, with a very sharp growth in 2018 (with 16,943 new Haitian migrants registered), in the recent years, Venezuelan migrants represented the higher number of registered long-term residents (70,653 new Venezuelan migrants registered in 2018). Indeed, in September 2022, it was estimated that 345,000 Venezuelan citizens were in the Brazil, with migrant, refugee or asylum seekers status. For the sole first quarter of 2022, Venezuelan migrants represented 80 per cent of asylum-seeking requests (OBMigra, Quaterly report, 2022). The Committee requests the Government to continue to provide statistical information, disaggregated by sex and nationality where available, on: (i) the employment of migrant workers in the various economic sectors; (ii) the number of permanent Brazilian emigrants; and (iii) the number of returning Brazilian nationals who lived outside the country.

Information on national policies, laws and regulations. The Committee notes with interest that a new legislative framework was introduced in order to ensure a better protection for the rights of immigrants and emigrants, namely through the adoption of: (1) Migration Law No. 13.445, of 24 May 2017 and its regulation Decree 9.199, of 20 November 2017; and (2) Law 13.684 of 21 June 2018 which defines emergency assistance measures for people in situation of vulnerability resulting from migration caused by humanitarian crisis. As regards the National Immigration Council (CNIg), which after administrative restructuring was re-established by Decree 9.873/2019, of 27 June 2019, the Committee notes the detailed information provided by the Government on the forty-five normative resolutions adopted by the CNIg, which is a tripartite body, since the adoption of the Migration Law. The Government adds that new internal regulations of the CNIg were approved in June 2022 (MJSP Ordinance No. 89, of 14 June 2022) and attributes the following competencies to the Council: (1) formulate the national immigration policy; (2) coordinate and guide labour immigration activities; (3) carry out a periodic survey of the needs of qualified immigrant labour; (4) promote and elaborate studies related to labour immigration; (5) recommend the conditions for attracting qualified immigrant labour; and (6) suggest amendments to the legislation regulating labour migration. The Committee requests the Government to continue to provide information on: (i) national policies, laws and regulations elaborated and implemented to give effect to the provisions of the Convention; and (ii) the activities of the CNIg, more particularly regarding any recommendations made with a view to formulating a national immigration policy.

Article 1(c). Information on general agreements and special arrangements. The Committee notes that citizens of Argentina, Bolivia, Chili, Colombia, Ecuador, Paraguay, Peru and Uruguay benefit from the MERCOSUR residence agreement which gives full access to the labour market for citizens of those countries. It notes with interest that, in order to face mass migration flow from Venezuela, Normative Resolution CNIg No. 126/2017 and Inter-Ministerial Ordinance No. 9, of 14 March 2018, provide that citizens from neighbouring countries where the MERCOSUR residence agreement is still not in force and who are already in the Brazilian territory can benefit from temporary residence permits. The Committee further notes that, in June 2019, the CONARE decided to recognize the condition of refugee to Venezuelan citizens considering the hypothesis of a serious and widespread violation of human rights in Venezuela. By October 2019, the CONARE received more than 120,000 applications by Venezuelan citizens seeking refugee status. The Committee notes that, pursuant to the Migration Law, provision is made for temporary visas and residence permits for humanitarian purposes for citizens from Haiti (Inter-ministerial Ordinance No. 29 of 25 April 2022) and citizens from Syria, Afghanistan and Ukraine that arrived in Brazil after fleeing conflicts at home (Inter-ministerial Ordinances Nos 9, of 8 October 2019; 24, of 3 September 2021; and 30, of 25 August 2022). It further notes that, in the framework of the Universal Periodic Review (UPR), the Government highlights the Ministry of Education’s support for the recognition of academic degrees of citizens from countries facing humanitarian crises, such as Venezuela and Syria (A/HRC/WG.6/41/BRA/1, 1 September 2022, paragraph 87). The Committee asks the Government to continue to provide information on the general agreements and special arrangements concluded, in particular in the framework of the MERCOSUR and their application in practice; and the difficulties encountered in their implementation.

Articles 2, 4 and 7. Free services and assistance. The Committee notes that the Government indicates that migrant workers have access to the public employment service (SINE) which provides assistance across the board, within the framework of the programs and services already established for nationals. In addition to the face-to-face services available at the 1,400 SINE employment agencies throughout the country, SINE also provides services through its digital platform (Portal Emprega Brasil). The Government adds that all public employment services are offered free of charge to both Brazilians and foreign citizens. In 2021, 24,172 new migrant workers registered with the SINE, mainly Venezuelan and Haitian. Furthermore, the total number of immigrants employed with a formal contract was estimated at 147,700 in 2019, which represents an 8.3 per cent increase compared to 2018. The Committee notes with interest that, in order to deal with the massive arrival of Venezuelan citizens in the last five years in northern Brazil, in the state of Roraima, the Federal Government began to implement, in April 2018, Operation Welcome (“Operación Bienvenida” –“Operation Welcome”- “Operação Acolhida”). Operation Welcome consists of emergency assistance and voluntary transportation of Venezuelan citizens to other federal states with a view to ensuring their socioeconomic integration, in accordance with the guidelines prepared by government agencies, as well as civil society and international organizations. From April 2018 to September 2021, more than 60,700 Venezuelan citizens residing in temporary shelters in Roraima have been relocated to more than 730 municipalities in different regions. In that regard, the Committee notes, from a study published in December 2021 by the UN Refugee Agency (UNHCR), UN Women and the United Nations Population Fund (UNFPA), that the outcomes of the operation have been positive. The unemployment rate for relocated Venezuelan citizens is 17.8 per cent compared to 30.8 per cent for Venezuelan citizens still living in shelters in Roraima. Relocated Venezuelan citizens are also potentially earning higher wages (“Limits and challenges to the local integration of Venezuelan refugees and migrants relocated during the COVID-19 pandemic”, 2021). However, the Committee notes that, in the UPR report, the United Nations country team, based on information from UNFPA, highlighted that some challenges remain in providing full adequate access to employment, social protection, public education and health to migrants. (A/HRC/WG.6/41/BRA/2, August 25, 2022, paragraph 67). The Committee asks the Government to continue to provide information on: (i) the measures taken to maintain adequate and free services to assist foreign workers, and provide them with accurate information; (ii) the manner in which such services address their particular concerns and needs, and any obstacles encountered; and (iii) the measures taken to facilitate the migration process and provide free services to Brazilian emigrants and returnees, including through bilateral agreements.

Article 3. Misleading propaganda. The Committee welcomes the Government's indication that, in September 2020, the Sub-secretariat for Labour Inspection (SIT), in collaboration with the ILO, the International Organization for Migration (IOM) and UNHCR, launched the “Labour Protection” (“Proteja o Trabalho”) campaign in order to provide information to migrants and refugees in Portuguese, Spanish, English, French and Arabic on labour standards, workers' rights, forced labour and child labour. Such information is publicly available through the project’s website and online transmissions are carried out on the Youtube channel of the National School of the Labour Inspectorate (ENIT). As a result, in June 2021, web-series called “Ser Brasil: Migrantes e Refugiados” were launched. The Government adds that the second phase of the “Protecting work” campaign is under development and will feature new themes on work and employment from a migrant workers’ and refugees’ perspective. The Committee notes the Government’s indication that, from 2006 to 2020, 880 migrant workers were rescued from forced labour situations by the labour inspectorate, mainly in the agriculture sector, textile industry and domestic work. The Government adds that, in 2021, 73 migrants were rescued from forced labour situations, mainly Paraguayan and Venezuelan workers, which represents an increase of 78 per cent compared to 2020. The Committee notes the Government’s statement that migrant workers who are victim of trafficking in persons can benefit from assistance measures provided for in Law No. 13.344, of 6 October 2016 regarding the prevention and suppression of trafficking in persons and the protection of victims. It further notes that section 232 of the Penal Code, introduced by the Migration Law, criminalizes actions promoting illegal migration and establishes penalties of imprisonment and a fine. The Committee asks the Government to continue to provide information on: (i) the measures adopted to prevent migrant workers from becoming victims of misleading propaganda, as well as to prevent and address forced labour and trafficking in persons targeting in particular migrant workers; (ii) the number of prosecutions initiated against those making use of misleading propaganda to recruit migrant workers, and the penalties imposed including pursuant to section 232 of the Penal Code; and (iii) any specific cooperation measures adopted with other States in that regard.

Article 6. Equality of treatment. The Committee notes with interest that section 4 of the Migration Law guarantees equal and free access of migrants to services, programmes and social benefits, public goods, education, comprehensive public legal assistance, work, housing, banking services and social security, without discrimination on the ground of nationality and immigration status. In that regard, it notes that the CNI and the IOE point out that the Federal Constitution and national legislation provide for the same labour rights to immigrants workers on an equal term with nationals. As regards domestic workers, the Committee welcomes the ratification of Domestic Workers Convention, 2011 (No. 189) by Brazil on 31 January 2018. The Committee however notes that, in its 2021 report on the situation of human rights in Brazil, the Inter-American Commission on Human Rights (IACHR) indicates that immigrants from Haiti and Syria face specific difficulty in accessing educational services and employment. The IACHR also refers to complaints filed about exploitation and discrimination in the workplace in which migrant workers reported working longer hours or receiving lower wages than Brazilian workers, in addition to being subjected to degrading working conditions and long working hours. The Committee asks the Government to provide information on: (i) the measures taken to ensure that, in practice, no less favourable treatment is applied to migrant workers lawfully within its territory than that applied to its own nationals, in respect of the matters set out in Article 6(1)(a)–(d) of the Convention, in particular remuneration, working time and working conditions, and their outcomes; and (ii) the number of cases of unequal treatment against migrant workers dealt with by the labour inspectors, the courts or any other competent authorities and the penalties imposed.

Annex I. Private employment agencies. The Committee notes that the Government does not provide any information regarding the draft Presidential Decree issuing regulations to give effect to Annex I of the Convention. The Committee requests the Government to provide information on any progress made in the adoption of legal measures with a view to regulating the activities of private employment agencies in order to protect migrant workers against possible abuses.