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Foreigner with Brazilian son can not be expelled from the country

06/25/2020

The Plenary of the Brazilian Federal Supreme Court (STF) decided that the expulsion of a foreigner with a Brazilian child born after the criminal act that motivated the act of expulsion is incompatible with the constitutional principles of child and family protection. The unanimous decision was taken in the judgment of Extraordinary Appeal (RE) 608898, with general repercussion (Theme 373), concluded in this Thursday's session (25).

The case concerns a citizen of Tanzania convicted in 2003 for using a false document (Article 304, combined with Article 297 of the Brazilian Criminal Code). After the sentence was served, a police investigation was opened for expulsion which, in 2006, resulted in an order from the Ministry of Justice requiring him to leave the country.

In the RE, the Union questioned the decision of the Superior Court of Justice (STJ) that had prohibited the expulsion, taking into account the principles of protection of the interest of the child provided in the Brazilian Federal Constitution and the Statute of the Child and Adolescent (ECA). According to the Union, the legislation of the time only prohibited expulsion if the Brazilian progeny had preceded the motivating fact, and preventing its implementation would go against national sovereignty, since it is a discretionary act by the President of the Republic.

Thesis

The thesis was as follows: "Paragraph 1 of article 75 of Law 6,815/1980 was not received by the Federal Constitution of 1988, and the expulsion of a foreigner whose child was recognized or adopted after the occurrence of the fact that led to the expulsion, once it was proven that the child was under the custody of the foreigner and economically dependent on him or her".

PR/CR//CF - CG/FB/GL

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