On 14th October, 2020, Resolution No. 42/2020 of the National Immigration Council (CNIg) was published. This rule changes Normative Resolution No. 6/2017, regarding residence permits for seafarers and other professionals who work on board vessels and platforms flying a foreign flag.
We have not found much clarification in relation to the changes brought about by migration directive RN 42/2020. As this subject is part of the day-to-day business of many companies, we decided to prepare a simple but informative paper about the main points covered by the directive regarding proportionality of Brazilian crew on board foreign vessels.
Point 1. Legislation prior to the change brought by RN 42/2020 was intended only for seafarers, whereas currently the directive is addressed to "seafarers and other professionals who work on board a vessel or platform with a foreign flag".
Point 2. As is well known, after remaining in Brazilian waters for more than ninety days, Brazilian crew must gradually replace foreigners on vessels. It was not uncommon for such vessels to leave Brazilian waters briefly, just in order to recount the mentioned ninety days.
Previously, the applicable directive did not inform the minimum period that a vessel should remain outside Brazilian jurisdictional waters in order for counting of days to be interrupted for the application of proportionality. Now, however, RN 42/2020 has expressly stated that the vessel must remain outside Brazilian jurisdictional waters for 15 consecutive days in order for the term to be effectively interrupted and the count to start over.
Some clients have questioned when the counting starts over and, as you can imagine, the answer is not unanimous, neither is it clearly established in the RN and in any other regulations for that matter. In order to remain on the safe side, thus avoiding problems with the Brazilian authorities, our guidance is to count from the date of entry into Brazilian jurisdictional waters.
Point 3. The rule allowed migrants entering Brazil on a overseas trip, carrying a SID, issued under the terms of the International Labour Organization (ILO) Convention, would not need a prior residence permit for the purpose of being granted a visa.
With the entry into force of the changes brought by RN 42/2020, there is a new rule which is applicable depending on the migrant's length of stay.
For the period of stay of up to 90 days, each migratory year, seafarers and other foreign professionals on board may enter Brazil with a visiting visa, being exempt from this, holders of the International Maritime Card (Seafarer's Identity Document-SID) issued under Convention 185 of the International Labour Organization (ILO). In case of a stay of more than 90 days, the residence permit will be required.
Point 4. The criteria for compliance with proportionality were also changed, as the percentages of Brazilian seafarers on board started to be applied also to subcategories such as the galley staff, which substantially alters the count.
4.1. Change in the proportionality count for maritime support vessels, which has now become by section and category (just as was already done in cabotage).
4.2. Proportionality rule to include oil drilling, production and storage units, which were not previously included.
4.3. Extension of the Cabotage rule for port support navigation, navigation in inland waters and vessels intended for regasification of liquefied natural gas.
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Prepared by Taina Magalhães in cooperation with David Henderson