The Constitution treats health as a fundamental human right, guaranteeing equal access to all. Therefore, denying health care to citizens, whether they are foreigners or Brazilians, is unconstitutional.
It was based on this understanding that the Roraima Court of Justice unanimously decided to overturn an injunction against a municipal law in Boa Vista that limits the number of migrants who can use Basic Health Units and the Children's Hospital.
The court ruled on a direct action of unconstitutionality brought by the municipality of Boa Vista itself against the city council. The decision was made on February 5. The trial on the merits will take place on February 30.
In its justification, the law (Law 2.074/2020) states that "in the last five years, there has been an unbridled increase in migrants in the state of Roraima, which has had an impact on various sectors in the lives of the local population, such as health, education and security".
In addition, the two-paragraph excerpt goes on to say, "with specific regard to public health, it has been noted that a large part of the care provided in basic health units, as well as in the municipal hospital, is being given to migrants who, most of the time, stay overnight and succeed in receiving care, thus preventing the Brazilian population from obtaining their constitutional right to health care."
The law stipulates that the use of public services by migrants must not exceed 50% of the total number of vacancies. If this limit is exceeded, refugees and migrants could be left without assistance. The law has been in force since January 7th.
In overturning the preliminary injunction, Judge Almiro Padilha, the judge reporting on the case, said that it was well known "that the immigration of Venezuelans has an impact on all public services provided, with great demand for health services".
"However," he continues, "considering the premises set by the constitutional text, they [migrants] cannot be excluded from such services, and there is a need for greater dialog on the matter, with the participation of the entities, protection agencies and the whole of society involved."
Discriminatory policy
A public civil action filed by the Federal Public Defender's Office and Conectas Human Rights in January had already questioned the validity of the municipal regulation, as anticipated by ConJur at the time.
According to the DPU, the law, "clearly stemming from a discriminatory institutional policy, unconstitutionally and illegally obstructs the broad exercise of the right to health by migrants and refugees, as well as subjecting them to a pseudo situation of irregularity, full of flagrant violations of constitutional guarantees, namely the prohibition of discrimination of origin, isonomy in public treatment, the right to human dignity, health, among others to be dealt with in a separate topic".
The institutions argue that Article 24 of the Constitution guarantees that "all persons are equal before the law" and therefore "are entitled, without discrimination, to equal protection". Article 5 of the Constitution also guarantees that all residents enjoy the same individual rights and guarantees as those who were born in Brazil.
"This action aims to guarantee that federal entities refrain from adopting discriminatory public policies in relation to migrants, based on the rights and guarantees provided for in the international human rights treaties to which Brazil is a signatory," says the petition.
Migration flow
The municipal law is a response to the intensification of the migratory flow in Roraima. Most of the migrants and refugees have left Venezuela, which is going through an economic crisis that reached its highest level in 2019.
According to UNICEF, Brazil received around 178,000 applications for refuge and temporary residence between 2015 and 2019. Most migrants enter the country via the northern border and are concentrated in the municipalities of Pacaraima and Boa Vista, both in Roraima.
However, research published in January by the Getúlio Vargas Foundation's Directorate for Public Policy Analysis (FGV DAPP), the Observatory of International Migration (OBMigra) and the Federal University of Roraima (UFRR), disputes the theory that Brazilians are being harmed by the migratory movement.
And it is precisely with regard to public health that the study provides some curious data. "With regard to the provision of health services, there is a downward trend in outpatient care provided by Roraima's municipalities during the period when refugees and immigrants arrive more intensely."
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