Is it possible to reduce the high fines stipulated in the New Immigration Law?
The new immigrant law, which came into force in 2017 and brought in a more humane approximation between the Brazilian state and the immigrant, unlike the old Immigrant Statute created in 1980 during the military dictatorship, and no longer the immigrant is considered a threat to national security.
This is a major step forward in the Brazilian government’s immigration policy, based on universal human rights, providing for the observance of the universality, indivisibility, and interdependence of human rights; repudiation and prevention of xenophobia, racism and any form of discrimination; the non-criminalization of migration; non-discrimination on grounds of the criteria or procedures by which the person was admitted in national territory; the promotion of regular entry and regularization of documents; humanitarian reception; the guarantee of the right to family reunion; equal treatment and opportunity for migrants and their families; the social, labor and productive inclusion of the migrant through public policies among many other rights.
Of all the changes that have caused the most debate is one that changed for the worse: the new penalties established, considered more severe than the previous legislation. In fact, the amount of the fine was previously R$ 8.27 (eight reais and twenty-seven cents) per day of irregular stay up to a limit of eight hundred and twenty-seven reais (R$ 827.00). The new legislation provides for a fine of R$ 100.00 (one hundred reais) per day of irregular stay – up to R$ 10,000.00 (ten thousand reais), a significant reform in the values of penalties.
However, studying the law in question, it is patent that there is a great deal of room for contestation, since according to the art. 300, § 3, of Decreto 9199/17 the final value of the fine must respect the financial capacity of the assessed. As is ensured, in the Migration Law itself, the principles of contradiction and ample defense, (this right being guaranteed also in our Federal Constitution) opens space for the respondent to legally contest with the Policia Federal the value of penalties.
In fact, there are already several cases of administrative proceedings contesting the final value of the fine applied. Of course, as there is a significant number of successful cases in relation to the request for revaluation of the penalty amount, there are also cases of non-success. The situation is at the discretion of the administration that is judging each case and the analysis of the criteria, the financial and social situation, and decide, to a certain extent in its subjectivism, whether this would be valid or not.
In some cases, it has also been verified that there was an INCORRECT CALCULATION OF THE SURPASSING DAYS AND, THEREFORE, THE IMMIGRANT GOT CHARGED MORE THAN THE AMOUNT OF FINE DUE.
Our office, Botinha & Cabral, has been operating in the market since 1999, representing the migrant in all sorts of services. We are also working in assisting the migrant assessed by the Federal Police to reduce or cancel the fine. It should be emphasized, once again, that it is necessary to analyze case by case, especially the socio-economic situation of the migrant. If you need any help on this regard, or in any immigration matters, please contact us. We will be glad to assist you.
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