O princípio da fungibilidade como solução aos julgamentos de casos não elegíveis ao refúgio: a proteção pela acolhida humanitária
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Data
2022-09-19
Autores
Oliveira, Isabella Thalita Andretto
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Universidade Federal do Espírito Santo
Resumo
The global migratory flow, which has intensified in recent years, has made the legal institutes dealing with migration, especially when forced, gain relevance. In this sense, the study proposed here is dedicated to the area of concentration in Justice, Process and Constitution, through which the application of the fungibility principle is analyzed as an alternative to the judgment of cases ineligible for refuge, as a way of giving maximum effectiveness to the Rights Humans. In order to do so, it investigates the regulatory legal frameworks, especially the 1951 Convention, the 1967 New York Protocol, the 1984 Cartagena Declaration, and domestic legal instruments, that is, Law 9,474/1997 and the Law 13,445/2017, in addition to soft law instruments, which form Brazilian migration policy. It also analyzes the modern motivations of forced migration, with emphasis on migrations due to violations of the Right to Development, as well as the consequences of the absence of an instrument to protect these migrations from the proposal of the Right to have Rights, by Hannah Arendt, in Origins of Totalitarianism, which first diagnosed the problem of migrants not welcomed by the refuge institute. It also aims to investigate the processes of request for refuge and humanitarian reception, mainly in relation to their similarities and distinctions, in addition to the study of the principle of fungibility in administrative processes. The research was carried out by adopting the method of analysis with the aim of decomposing the research object in detail, but combining it with the method of synthesis, in addition to the use of the deductive method as another instrument in carrying out the research, since, based on all the material produced based on the decomposition and synthesis methods, it is possible to formulate and adopt premises, from which an adequate answer to the problem can be extracted, without, however, reducing the study to the mere clipping of information. In this way, it was concluded that the granting of a residence permit for humanitarian reception is shown as a possible solution to the problem of the due reception of migrants forced by violations of the Rights to Development, which does not preclude that, in the future, the necessary changes to the Law of Refuge and international instruments are made to include these motivations among the eligibility criteria for refuge.
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Acolhida humanitária , Princípio da fungibilidade , Processo administrativo