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Immigration: Controversial Issues

Immigration: Controversial Issues. Ana Rita Gil FDUNL, 10th April 2013. Immigration Miths and Facts. Criminality and Immigration Unemployement and poverty Burden to the social security services . Recognition of a right to Immigration?. There is no Right to Immigration.

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Immigration: Controversial Issues

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  1. Immigration:ControversialIssues Ana Rita Gil FDUNL, 10th April 2013

  2. Immigration Miths and Facts • Criminality and Immigration • Unemployement and poverty • Burden to the social security services

  3. Recognition of a right to Immigration?

  4. There is no Right to Immigration 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 return thereto” TC – it is only applicable to national citizens(ruling. 359/93)

  5. The recognition of a Right to 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”

  6. There is no protection againstexpulsions Prohibition of Expulsions– only for national citizens Art. 3, n.1 of the 4th AdditionalProtocol 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”.

  7. ratio – nationalsovereignty:- Impact of the immigration on the concept of “State”- Impact of the immigration on the interests of the State

  8. Currentsolution: the compromiseSovereignty – Human Rights

  9. Currentsolution Most common situations: • Prohibition of torture or inhuman or degrading treatment or punishment. • Protection of Family and PrivateLife

  10. Prohibition of torture or inhuman or degrading 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

  11. Protection of Family and Private Life Encompasses: • Right to family reunification • Right to not be expelled from the country

  12. Protection of Family and PrivateLife Reasons 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;

  13. Regularization of illegallystaying aliens

  14. Reasons For • Acquisition, by virtue of time, a “right to reside” – adverse possession • End to Exploitation situations • More advantages to the society ReasonsAgainst • “Call efect” • Lost of Borders control • More advantages to the society

  15. Right to Cultural Identity

  16. ControversialQuestions:- religioussymbols- violation of the physicalintegrity- concept of family

  17. Reasons 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) ReasonsAgainst • Fundamental principles of the host country • “Full integration”

  18. Main Principle- balance between:1. cultural identity of the immigrant2. fundamental values of the hostcommunityAdvocacy of the Intercultural Dialogue

  19. Recognition of effects to PoligamousMarriages

  20. Reasonsagainst • Sovereignty of the host country • Cultural identity of the host State • Legal harmony of the host State

  21. Reasonsagainst • Principles disrespected: • Monogamy • Secularism • Equality • “Women’s Dignity”

  22. Reasons in favour • 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

  23. Need to recogniseeffects • Those effects that aim at protecting wives / children: Ex: • Maintenance obligations • Inheritance • Compensation for damages due to death

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