Legislation

The framework of the issue of illegal immigration in Brazil, in which stowaways are inserted,  presents several and different interfaces   and must be carefully considered by Clubs and members, such as Immigration (Federal Police is the Immigration Authority in the Country), Health Authorities (ANVISA- National Health Surveillance Agency) and Maritime Authorities (Harbour Master and Maritime Tribunal).

Immigration Law 13,455

The Immigration Law considers the person who enters the national territory as a stowaway if the following situation occurs:

– Entrance in the national territory without authorization.

– Transportation to Brazil of a person who is without regular immigration documents.

The fine will be charged for each stowaway and the penalties vary in the range of BRL 1,000.00 to 1,000.000.00, depends on the economic condition of the offender, the recurrence and seriousness of the infraction.

Persons with irregular or absent migration documentation will be personally notified and can voluntary regularize their migratory status up to 60 days from the date of notification.

If immediate repatriation is not possible, entry of that person may be allowed by the Federal Police of each Port/Airport, provided that the carrier or its agent signs a term of commitment. The allowance of landing stowaways will be granted, only when the carriers provide, through their agents, the bond to undertake the expenses regarding the repatriation, meals and housing.

It is also important to mention that the stowaway has the right to plea for asylum in any moment when he is disembarked. The National Commission for Refugees (CONARE) shall evaluate case by case and it can be last months to conclude the legal and administrative aspects of this complex situation.

Health Authority Law Ordinances

The ordinances about the breaches of sanitary legislation establish punishment for non-compliance with legal and regulatory norms, measures, formalities and other sanitary requirements by transport companies, their agents and consignees, captains or direct responsible persons for vessels.

So, ships will be subject to a specific evaluation of each local authority – especially due to the procedures regarding Covid-19. The main checks performed are related to documents, statements, health background and medical logbook. PCR Tests for Covid-19 and Malaria will probably be required.

For instance, in a recent case, the entry of four illegal immigrants was registered, three of which were found suffering from malaria after lab tests were performed.

Maritime Authority Law

As for the rules of the Maritime Authority, the cases of illegal immigrants and owners  covered by the Law of the Maritime Tribunal (2180/54).

Firstly, the local Port Captaincy starts an investigation by collecting documents, formal statements and inspection on board, whose details will be forwarded to the Maritime Court. The Tribunal will decide whether they will start a judgment.

In recent decisions regarding stowaways, The Maritime Court used to impute the responsibility to the vessel’s Captain for negligence and compromise of navigation safety. In specific cases, the Court has the following understanding:

a) As to the nature and extent of the fact of navigation: presence of two illegal immigrants on board;

b) As to the determining cause: lack of surveillance;

c) Decision: to judge the fact of navigation, as a result of negligence of the represented, condemning both to pay a fine of BRL 1,000.00 (one thousand reais) and costs, pursuant to articles 15, letter “e” and 121, item VII of the Maritime Court Law.

 Recommendations:

• Masters/ship must be aware about the practices recommended in FAL Convention;
• Notify the appropriate authorities (Immigration, Health and Maritime) and to comply with any directions made by the competent national authorities at the port of disembarkation;
• Avoid close contact between stowaway and crewmember in order to minimize any infections spreading;
• Provide Master statement, as well other witness, prior to arrive to the port;
• Although all frameworks are in the administrative sphere, if the authority deems that there was no cooperation on the part of the ship owner, the ship may have its operation or departure delayed until the information is satisfactorily provided to the authorities;
• Thus, a proactive and collaborative attitude is extremely recommended in order to obtain a speedy analysis of the situation by the local authorities, avoiding the retention of the ship for a longer period.

Brazil P&I expertise:

We are ready to provide full support to the Members for disembarkation, assistance before the immigration, maritime and sanitation authorities. All support during stowaways’ staying in the City to comply with immigration department demands, arrange the necessary repatriation documents and to liaise with the immigration department when the repatriation is confirmed.