Migration Inadmissibility as a Barrier to Accessing Refugee Protection: Violations of the Principle of Non-Refoulement and Fundamental Rights

violação ao "non-refoulement" e aos direitos fundamentais

Abstract

This article analyzes the normative conflicts arising from Technical Note No. 18/2024 issued by the Brazilian Department of Migration, with particular emphasis on migratory inadmissibility and access to refugee status determination procedures in Brazil. The study examines the relationship between the Brazilian Migration Law (Law No. 13,445/2017) and the Refugee Law (Law No. 9,474/1997), considering the Federal Constitution and Brazil's international human rights obligations. The study adopts a qualitative methodological approach based on bibliographical, documentary, and jurisprudential analysis, including decisions of the Brazilian Supreme Federal Court and advisory opinions of the Inter-American Court of Human Rights. The findings demonstrate that the administrative guideline conditioning access to refugee status determination procedures upon the regularity of entry constitutes an undue restriction on international protection, violating the principle of non-refoulement, human dignity, and the right of access to international protection mechanisms. Furthermore, the study demonstrates that such administrative guidance reflects a broader process of migration securitization, shifting the debate from human protection toward border control and producing legal and social exclusion. It concludes that migratory inadmissibility based solely on documentary irregularities cannot operate as a barrier to refugee protection, as such an interpretation undermines both the international refugee protection regime and the effectiveness of the fundamental rights guaranteed to migrants and refugees.