Criminal background check for VITEM

07/30/2023 Most (if not all) VITEM visa have a recent criminal background check as a requirement. Are there any criteria as to what kind of ‘criminal past’ will disqualify someone from getting the visa? Or is it up to the embassy, or the officer, to decide if it’s a problem or not?
-@Kurterino

The most definitive criteria that I've found on the subject are in Art. 30 §1° of the Lei de Migração (http://www.planalto.gov.br/ccivil_03/_a … l13445.htm), concerning Authorization of Residency:

"Authorization of residency shall not be granted to the person criminally convicted in Brazil or abroad with a final sentence, provided that the conduct is defined in Brazilian criminal law, except in cases in which:

I. the conduct is defined as an infraction of lesser offensive potential (defined in Law No. 11.313 of 28 June 2006 as infractions with sentences of not more than two years, with or without fines);

II. (VETOED)

III. the person qualifies under "b" (medical treatment) , "c" (humanitarian admission) , or "i" (family unification) of Clause I above, or under "a" (beneficiaries of treaties of free movement, e.g., Portuguese citizens) of Clause II above."

So in those terms, it's up to the Consulate with respect to the visa and, in the final analysis, the Federal Police when the person goes to them to finalize residency. The Consulate and the Federal Police retain the right of rejection, but there's policy pressure to approve cases involving medical treatment, refugee status, and family unification. A sentence of two years or less that's already been served may not be an impediment and of course, anything that isn't a crime in Brazil (e.g. a political prisoner situation) shouldn't be an impediment.

Anecdotally I've heard of cases of people who have served sentences longer than two years being admitted, but they were all refugee or family unification cases.

@abthree

Now that’s interesting, because the guy who asked me about this was thinking about getting a family reunion visa, until he realized that there’s gonna be a background check. He did spend time behind bars , but just a few months, and got out on a technicality.

Which means he should still at least try and apply.

07/31/23 @abthree
Which means he should still at least try and apply.
-@Kurterino

Definitely.  Especially if "got out on a technicality" means that the conviction was set aside.  The exclusion only applies to convictions for which all processes are complete and all appeals denied.

@abthree

I’m not sure, but he might have been convicted, albeit of something a lot less severe than what he was facing…either way it’s worth a try.

07/31/23 @abthree I’m not sure, but he might have been convicted, albeit of something a lot less severe than what he was facing…either way it’s worth a try.
-@Kurterino

The expression that I translated "with a final sentence" above is "por uma sentença transitada em julgado" in the original.  It's hard to translate that into English because it represents a subtle difference between Common Law and Brazilian Law. Here, until a sentence has been confirmed at every available level of review, the presumption of innocence still applies.   The verdict is still provisional, and a reversal at any subsequent level voids it as if it never existed.  For example, Lula served over a year on his Lava Jato conviction, but because in the end the STF reversed it, there's no conviction on his record.

Swiss Law may be similar so this may be obvious to you, but that's the lens through which your friend's record will be viewed.

@abthree In fact I believe Brazil is the only country where this applies...

07/31/23  @abthree In fact I believe Brazil is the only country where this applies...
-@Peter Itamaraca

That may well be.  Brazilian Law generally follows the same patterns as other Civil Law countries, but there are some Brazilian innovations.