Let’s Stick with the Formalities: the Limits of Judicial Oversight of Asylum Procedures in Brazil

The proposed paper explores the ambivalent position of Brazilian courts regarding the scope of judicial oversight of domestic refugee status determination (RSD) procedures, conducted administratively by the National Committee for Refugees (CONARE). On one hand, Brazilian courts have developed a solid case-law affirming that all individuals are entitled to file an asylum application regardless of how they entered the country, often citing the Convention relating to the Status of Refugees (CSR) and the principle of non-refoulement to ground this conclusion. This understanding was strengthened during the COVID-19 pandemic, when Brazilian courts consistently declared the illegality of ordinances from the Executive Branch disqualifying people who had entered Brazilian territory irregularly from applying for asylum (Interministerial Ordinance No. 655/2021). On the other hand, these courts have also repeatedly refused to review the merits of RSD decisions rejecting asylum claims, under the justification that the ‘granting’ of refugee status is a discretionary and sovereign prerogative of the executive branch of government. This scenario creates a protection gap that, so far, has received little attention from researchers and practitioners alike. To put it bluntly, what use is it having access to an asylum procedure if there is no guarantee that administrative decision-makers will assess applications according to the law? The question may seem mere academic pessimism; after all, Brazil is often lauded as an example of refugee protection, and historical averages of recognition of refugee status are remarkably high—86.7% between 1997 and 2022. However, this average hide important fluctuations. From 2015 to 2018, recognition rates dropped considerably, reaching 14.3% in 2018. Only in 2019, when Venezuelans started being massively recognized as refugees through an accelerated procedure, did recognition rates rise again to 97.3%. There exists no clear information explaining this four-year drop, since RSD decisions in Brazil are not made available outside CONARE, even upon request. Moreover, administrative appeals of negative RSD decisions, which are decided directly by the Minister of Justice (MoJ), have been rejected in 97.43% of cases from 2018 to May 2024. Accordingly, if the asylum application fails before CONARE, the applicant only has one opportunity of review by a single person, the MoJ, with minimal chances of success. Brazilian courts therefore have been adopting a protective approach towards asylum seekers’ access to the RSD framework, mindful of preserving the effectiveness of this access with plenty of references to Brazil’s international obligations. When it comes to the granting of protection, however, these courts are highly deferential and fail to engage with international law beyond vague invocations of ‘sovereignty’. The paper will thus explore the divergences and incongruences between Brazilian courts’ practice regarding (a) the right to access RSD procedures and (b) judicial review of negative RSD decisions. The paper then will show that this results both from a limited comprehension of Brazil’s obligations under the CSR and the American Convention on Human Rights, and from a stereotyped vision of Brazil’s ‘welcomeness’ towards foreigners. It concludes with some reflections on how this ambivalence may be addressed.