Immigration: Controversial Issues Ana Rita Gil FDUNL, 10th April 2013.
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Transcript of Immigration: Controversial Issues Ana Rita Gil FDUNL, 10th April 2013.
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Immigration:Immigration:
Controversial Controversial IssuesIssues
Ana Rita GilFDUNL, 10th April 2013
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Immigration Immigration Miths and FactsMiths and Facts
-Criminality and Immigration
-Unemployement and poverty
-Burden to the social security services
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Recognition of a Recognition of a right to right to
Immigration?Immigration?
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There is no Right to There is no Right to ImmigrationImmigration
Right 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)
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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”
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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”.
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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
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Current solution: Current solution:
the compromise the compromise
Sovereignty – Human Rights Sovereignty – Human Rights
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Current solutionCurrent solution
Most common situations:Most common situations:
- Prohibition of torture or inhuman or degrading treatment or punishment.
- Protection of Family and Private Life
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Prohibition of torture or inhuman or Prohibition of torture or inhuman or degrading treatment or punishmentdegrading treatment or punishment
Encompasses:
◦ 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
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Protection of Family and Private LifeProtection of Family and Private Life
Encompasses:
◦ Right to family reunification
◦ Right to not be expelled from the country
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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;
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Regularization of Regularization of illegally staying illegally staying
aliensaliens
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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
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Right to Cultural Right to Cultural IdentityIdentity
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Controversial Controversial Questions:Questions:
- religious symbols
- violation of the physical integrity
- concept of family
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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”
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Main PrincipleMain Principle- balance between:
1. cultural identity of the immigrant2. fundamental values of the host
community
Advocacy of the Intercultural Dialogue
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Recognition of effects Recognition of effects to Poligamous to Poligamous
Marriages Marriages
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- Sovereignty of the host country
- Cultural identity of the host State
- Legal harmony of the host State
Reasons againstReasons against
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- Principles disrespected:
1. Monogamy
2. Secularism
3. Equality
4. “Women’s Dignity”
Reasons againstReasons against
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- 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
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- 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