Federal Supreme Court Bans Expulsion of Foreigner with Child Born in Brazil

RIO DE JANEIRO, BRAZIL – The STF (Federal Supreme Court) decided that the expulsion from the country of a foreigner who has a Brazilian child is prohibited.

The ruling, issued on Thursday, June 25th, was unanimous and also applies to people who have adopted or had children after the criminal act leading to the order for expulsion from Brazil.

The justices considered that the expulsion, based on the 1980 Foreigners Act, is not in compliance with the 1988 Constitution, which establishes the principles of protection for children and the family.

This Thursday’s ruling will extend to all ongoing proceedings on the matter, since the STF also determined that its decision should be a binding precedent for all cases.

The case reached the STF after the AGU (Solicitor General of Brazil) challenged the STJ’s (Superior Court of Justice) decision to ban an expulsion decreed in 2006 by the Ministry of Justice.

The portfolio had ordered the return of a Tanzanian citizen to his country of origin, after he had been convicted in 2003 for using a forged document.

At the time, the federal government claimed that the law only prevented the expulsion order if the child’s date of birth predated the criminal act.

The rapporteur, Justice Marco Aurélio Mello, argued that depriving the child of family life hinders access to the necessary resources for livelihood, as it would pose obstacles to the collection of alimony, for instance, from an individual living in another country.

“The family is the basis of society and the child’s right to family coexistence. The expulsion would force rupture and abandonment upon the child, the effects of which would have repercussions on various levels of existence, clashing not only with the special protection granted to the child but also with the essence of protecting the dignity of the individual,” he said.

The trial began in November 2018 and was reopened with a vote by Justice Gilmar Mendes, who had asked for more time to analyze the case.

“We must safeguard the father-child relationship, preserving the core family and the child’s affective interest. The expulsion of a foreigner with a Brazilian child born after the act that led to it must be banned, considering the constitutional rights to family and community life. Expulsion is inconceivable,” said Gilmar.

Justice Celso de Mello was in line with this and stressed that the case involves the daughter’s financial dependence on her father. The ruling’s opinion states that the foreigner must prove that the child is in his custody and that she depends on him financially.