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 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)

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”

There is no protection against expulsions 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”.

ratio – national sovereignty: - Impact of the immigration on the concept of “State” - Impact of the immigration on the interests of the State

Current solution: the compromise Sovereignty – Human Rights

Current solution 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 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

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

Protection of Family and Private Life 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;

Regularization of illegally staying aliens

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

Right to Cultural Identity

Controversial Questions: Controversial Questions: - religious symbols - violation of the physical integrity - concept of family

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) Reasons Against - Fundamental principles of the host country -“Full integration”

Main Principle Main Principle - balance between: 1. cultural identity of the immigrant 2. fundamental values of the host community Advocacy of the Intercultural Dialogue

Recognition of effects to Poligamous Marriages

- Sovereignty of the host country - Cultural identity of the host State - Legal harmony of the host State Reasons against

- Principles disrespected: 1.Monogamy 2.Secularism 3.Equality 4.“Women’s Dignity” Reasons 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 favour

- Those effects that aim at protecting wives / children: Ex: - Maintenance obligations - Inheritance - Compensation for damages due to death Need to recognise effects