Immigration:Immigration:

Controversial Controversial IssuesIssues

Ana Rita GilFDUNL, 10th April 2013

Immigration Immigration Miths and FactsMiths and Facts

-Criminality and Immigration

-Unemployement and poverty

-Burden to the social security services

Recognition of a Recognition of a right to right to

Immigration?Immigration?

There is no Right to There is no Right to ImmigrationImmigrationRight of entry in the national territory– only for National Citizens

Art. 13, n.2 of the UDHR: “Everyone has the right to (...) return to his country”

Art. 3, n.2 of the 4th additional Protocol to the ECHR: “No one shall be deprived of the right to enter the territory of the state of which he is a national.”

Art. 44., n. 2 of the Portuguese Constitution: “Every citizen is guaranteed the right to emigrate or to leave Portuguese territory and the right to returnthereto”

TC – it is only applicable to national citizens(ruling. 359/93)

The recognition of a Right The recognition of a Right to Emigrationto Emigration

Art. 13, n.2 of the UDHR: “Everyone has the right to leave any country, including his own (...)”

Art. 12, n. 2 of the ICCPR: “Everyone shall be free to leave any country, including his own”

Art. 2, n.2, of the 4th additional Protocol to the ECHR : “Everyone shall be free to leave any country, including his own”

There is no There is no protection against protection against expulsionsexpulsions

Prohibition of Expulsions– only for national citizens

Art. 3, n.1 of the 4th Additional Protocol to the ECHR: “No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national”

Art. 33 of the Portuguese Constitution: “The deportation of Portuguese citizens from Portuguese territory is not allowed”.

ratioratio – national sovereignty: – national sovereignty:

- Impact of the immigration on the - Impact of the immigration on the concept of “State”concept of “State”

- Impact of the immigration on the - Impact of the immigration on the interests of the State interests of the State

Current solution: Current solution:

the compromise the compromise

Sovereignty – Human Rights Sovereignty – Human Rights

Current solutionCurrent solutionMost common situations:Most common situations:

- Prohibition of torture or inhuman or degrading treatment or punishment.

- Protection of Family and Private Life

Prohibition of torture or inhuman or Prohibition of torture or inhuman or degrading treatment or punishmentdegrading treatment or punishmentEncompasses:

◦ torture or inhuman or degrading treatment or punishment

◦ Risk of persecution (of the State of other actors)

◦ Serious illness (exceptionally) (TEDH, D. v. United Kigdom, 1997)

◦ Impossibility to travel due to physical condition

Protection of Family and Private LifeProtection of Family and Private Life

Encompasses:

◦ Right to family reunification

◦ Right to not be expelled from the country

Protection of Family and Protection of Family and Private LifePrivate LifeReasons to consider (ECHR, Boultif, 2001 e

Üner, 2006):

Legal status of the Alien in the host country; Nature and seriousness of the crime committed; Time elapsed since the commission of the crime, and

the alien’s behaviour since then; Existing connections with the host country; Existing connections with the country of origin; Nationality / legal status of the family members; Children involved, their age and socialization in the

host country;

Regularization of Regularization of illegally staying illegally staying

aliensaliens

Reasons ForReasons For- Acquisition, by virtue of time, a “right to reside” – adverse possession

-End to Exploitation situations

-More advantages to the society

Reasons AgainstReasons Against- “Call efect”

- Lost of Borders control

-More advantages to the society

Right to Cultural Right to Cultural IdentityIdentity

Controversial Controversial Questions:Questions:

- religious symbols

- violation of the physical integrity

- concept of family

Reasons ForReasons For- Personal Identity

- Easier Integration

- Equal Dignity / Respect of all the cultures

- Respect for the Culture of origin (Framework Convention for the Protection of National Minorities, 1995)

Reasons AgainstReasons Against- Fundamental principles of the host country

-“Full integration”

Main PrincipleMain Principle- balance between:

1. cultural identity of the immigrant2. fundamental values of the host

community

Advocacy of the Intercultural Dialogue

Recognition of effects Recognition of effects to Poligamous to Poligamous

Marriages Marriages

- Sovereignty of the host country

- Cultural identity of the host State

- Legal harmony of the host State

Reasons againstReasons against

- Principles disrespected:

1. Monogamy2. Secularism3. Equality4. “Women’s Dignity”

Reasons againstReasons against

- Equal treatment for laws

- Respect for the immigrant’s cultural identity

- Stability of the legal relations

- Acquired Rights

- Protection of wives and children of polygamic marriages

Reasons in favourReasons in favour

- Those effects that aim at protecting wives / children:

Ex: - Maintenance obligations- Inheritance- Compensation for damages due to death

Need to recognise Need to recognise effectseffects