Migrações na pandemia de COVID-19: o controle de fronteiras no Brasil

Abstract

The study aims to assess the validity of Brazil's border control measures during the COVID-19 pandemic, presenting guidelines for an alternative model that reconciles the restrictive migration measures adopted to protect public health with the human rights of migrants. To achieve this objective, the study initially outlines Brazil's approach to managing COVID-19 in the context of border control by analyzing the normative acts issued during the pandemic. Subsequently, it examines the validity of such border control measures based on applicable human rights norms, using the following parameters: equality, legality, the right to asylum, non-refoulement, and due process of law. As a corollary of this examination, the study seeks to establish the limits of human rights protection in the context of a public health crisis that must be observed to ensure the legitimacy of restrictive measures. Finally, drawing on actions taken by the European Union and other Mercosur members during the COVID-19 pandemic, solutions proposed by specialized legal doctrine, and principles set forth in international instruments, the study proposes guidelines for a model that harmonizes the migration restrictions adopted to ensure public health with the human rights of migrants. The research is classified as basic (in terms of its nature), explanatory (in terms of its objectives), and qualitative (in terms of the approach to the problem). The initial hypothesis, which is tested throughout the study, posits that the border control measures implemented by Brazil during the COVID-19 pandemic were, in general, not valid under applicable human rights norms. However, it identifies certain guidelines which, if followed, could render migration restrictions legitimate in this context of a public health crisis. Through continuous testing, the study confirmed the initial hypothesis that Brazil’s migration policy, executed through exceptional border control measures during the COVID-19 pandemic, violated the normative framework established by international human rights treaties, the Federal Constitution, and Brazilian law. Furthermore, it was found that the rights restrictions failed to comply with the principle of proportionality, resulting in the annihilation of the human rights of populations on the move. Lastly, it was possible to establish guidelines for a dogmatic-normative model aligned with the stated objectives, namely: (i) border control must be instituted by law and grounded in scientific criteria; (ii) the right to collective health as a diffuse right and migrants as rights-holders; and (iii) the non-derogation of humanitarian migration protection legislation, with adjustments to the exercise of the right to asylum in response to the crisis scenario.