Clase nationality and immigration, Apuntes de Derecho Internacional

¡Descarga Clase nationality and immigration y más Apuntes en PDF de Derecho Internacional solo en Docsity! Nationality and immigration I.The nationality and the law of nationality 1. Concept and legal character of the national link • Definition „nationality“: • Legal aspect: The legal relationship between country and citizen, rights and dutys for state and individuum belonging to a specific group of people (but you don’t have to share traditions, …) 1 with a nationality you are entiteled to be recognized legal by the state • Social aspect: Different official languages • Geography: Different territories • History: Every nationality shares the same history (ex: EU: do not want war anymore) →culture and nationality are connected, so the law has to follow/ respect the culture (this connection is the reason why we have problems with immigration) →first the culture changes, then the law changes (law regulates all things) • Why don’t we feel the european nationality? →traditions change (first there was no EU, so the mentality has to change) • Nationality is a right: Art. 15 universal convention of human rights: „(1) Everyone has the right to a nationality. (2) No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.“ →state and your nationality protect you (state has dutys) towards his citizen →right to be recognized by the state • The states try not to leave people without nationality, but sometimes there are stateless people who aren’t recognized from the state (ex. Rohinjas) • Difference between citizenship and nationality? Some states distinguish between social (=nationality) and legal (=citizenship), but Spain not • The legal link between individuum and state has a double nature: • Public aspect: Lawful title; political title used for refugees • Private aspect: Civil status; attribution (Zurechnung) to the public; terminal rights and dutys of the citizen in front of the state • Special problem: one person has two different nationalities: does he has to comply more dutys, more rights? • Spain has special relations to Latinoamerica, Phillippinen, Papuaneuguinea, Portugal (for these citizen it’s easier to have the spanish nationality) 2. The sources of Nationality law • Every state decides for himself to receive immigrants, they cannot be forced • But there are parameter which have to be observed by the state • Two different principles to give the nationality: • Ius sanguinis Right of blood, descendance (Abstammung) Ex: father or mother have the german nationality, so „across the blood“ the child has also the german nationality →blood dertermines where you belong →most countries in EU use this principle 2 c) Por el interesado, por sí solo, si está emancipado o es mayor de dieciocho años. La opción caducará a los veinte años de edad, pero si el optante no estuviera emancipado según su ley personal al llegar a los dieciocho años, el plazo para optar se prolongará hasta que transcurran dos años desde la emancipación. d) Por el interesado, por sí solo, dentro de los dos años siguientes a la recuperación de la plena capacidad. Se exceptúa el caso en que haya caducado el derecho de opción conforme al párrafo c). 3. No obstante lo dispuesto en el apartado anterior, el ejercicio del derecho de opción previsto en el apartado 1.b) de este artículo no estará sujeto a límite alguno de edad. Artículo 21. 1. La nacionalidad española se adquiere por carta de naturaleza, otorgada discrecionalmente mediante Real Decreto, cuando en el interesado concurran circunstancias excepcionales. 2. La nacionalidad española también se adquiere por residencia en España, en las condiciones que señala el artículo siguiente y mediante la concesión otorgada por el Ministro de Justicia, que podrá denegarla por motivos razonados de orden público o interés nacional. 3. En uno y otro caso la solicitud podrá formularla: a) El interesado emancipado o mayor de dieciocho años. b) El mayor de catorce años asistido por su representante legal. c) El representante legal del menor de catorce años. d) El representante legal del incapacitado o el incapacitado, por si solo o debidamente asistido, según resulte de la sentencia de incapacitación. En este caso y en el anterior, el representante legal sólo podrá formular la solicitud si previamente ha obtenido autorización conforme a lo previsto en la letra a) del apartado 2 del artículo anterior. 4. Las concesiones por carta de naturaleza o por residencia caducan a los ciento ochenta días siguientes a su notificación, si en este plazo no comparece el interesado ante funcionario competente para cumplir los requisitos del artículo 23. Artículo 22. 1. Para la concesión de la nacionalidad por residencia se requiere que ésta haya durado diez años. Serán suficientes cinco años para los que hayan obtenido la condición de refugiado y dos años cuando se trate de nacionales de origen de países iberoamericanos, Andorra, Filipinas, Guinea Ecuatorial o Portugal o de sefardíes. 2. Bastará el tiempo de residencia de un año para: a) El que haya nacido en territorio español. b) El que no haya ejercitado oportunamente la facultad de optar. c) El que haya estado sujeto legalmente a la tutela, guarda o acogimiento de un ciudadano o institución españoles durante dos años consecutivos, incluso si continuare en esta situación en el momento de la solicitud. 5 d) El que al tiempo de la solicitud llevare un año casado con español o española y no estuviere separado legalmente o de hecho. e) El viudo o viuda de española o español, si a la muerte del cónyuge no existiera separación legal o de hecho. f) El nacido fuera de España de padre o madre, abuelo o abuela, que originariamente hubieran sido españoles. 3. En todos los casos, la residencia habrá de ser legal, continuada e inmediatamente anterior a la petición. A los efectos de lo previsto en el párrafo d) del apartado anterior, se entenderá que tiene residencia legal en España el cónyuge que conviva con funcionario diplomático o consular español acreditado en el extranjero. 4. El interesado deberá justificar, en el expediente regulado por la legislación del Registro Civil, buena conducta cívica y suficiente grado de integración en la sociedad española. 5. La concesión o denegación de la nacionalidad por residencia deja a salvo la vía judicial contencioso-administrativa. Artículo 23. Son requisitos comunes para la validez de la adquisición de la nacionalidad española por opción, carta de naturaleza o residencia: a) Que el mayor de catorce años y capaz para prestar una declaración por sí jure o prometa fidelidad al Rey y obediencia a la Constitución y a las leyes. b) Que la misma persona declare que renuncia a su anterior nacionalidad. Quedan a salvo de este requisito los naturales de países mencionados en el apartado 1 del artículo 24 y los sefardíes originarios de España. c) Que la adquisición se inscriba en el Registro Civil español. Artículo 24. 1. Pierden la nacionalidad española los emancipados que, residiendo habitualmente en el extranjero, adquieran voluntariamente otra nacionalidad o utilicen exclusivamente la nacionalidad extranjera que tuvieran atribuida antes de la emancipación. La pérdida se producirá una vez que transcurran tres años, a contar, respectivamente, desde la adquisición de la nacionalidad extranjera o desde la emancipación. No obstante, los interesados podrán evitar la pérdida si dentro del plazo indicado declaran su voluntad de conservar la nacionalidad española al encargado del Registro Civil. La adquisición de la nacionalidad de países iberoamericanos, Andorra, Filipinas, Guinea Ecuatorial o Portugal no es bastante para producir, conforme a este apartado, la pérdida de la nacionalidad española de origen. 2. En todo caso, pierden la nacionalidad española los españoles emancipados que renuncien expresamente a ella, si tienen otra nacionalidad y residen habitualmente en el extranjero. 3. Los que habiendo nacido y residiendo en el extranjero ostenten la nacionalidad española por ser hijos de padre o madre españoles, también nacidos en el extranjero, cuando las leyes del país donde residan les atribuyan la nacionalidad del mismo, perderán, en todo caso, la nacionalidad española si 6 no declaran su voluntad de conservarla ante el encargado del Registro Civil en el plazo de tres años, a contar desde su mayoría de edad o emancipación. 4. No se pierde la nacionalidad española, en virtud de lo dispuesto en este precepto, si España se hallare en guerra. Artículo 25. 1. Los españoles que no lo sean de origen perderán la nacionalidad: a) Cuando durante un período de tres años utilicen exclusivamente la nacionalidad a la que hubieran declarado renunciar al adquirir la nacionalidad española. b) Cuando entren voluntariamente al servicio de las armas o ejerzan cargo político en un Estado extranjero contra la prohibición expresa del Gobierno. 2. La sentencia firme que declare que el interesado ha incurrido en falsedad, ocultación o fraude en la adquisición de la nacionalidad española produce la nulidad de tal adquisición, si bien no se derivarán de ella efectos perjudiciales para terceros de buena fe. La acción de nulidad deberá ejercitarse por el Ministerio Fiscal de oficio o en virtud de denuncia, dentro del plazo de quince años. Artículo 26. 1. Quien haya perdido la nacionalidad española podrá recuperarla cumpliendo los siguientes requisitos: a) Ser residente legal en España. Este requisito no será de aplicación a los emigrantes ni a los hijos de emigrantes. En los demás casos podrá ser dispensado por el Ministro de Justicia cuando concurran circunstancias excepcionales. b) Declarar ante el encargado del Registro Civil su voluntad de recuperar la nacionalidad española. c) Inscribir la recuperación en el Registro Civil. 2. No podrán recuperar o adquirir, en su caso, la nacionalidad española sin previa habilitación concedida discrecionalmente por el Gobierno, los que se encuentren incursos en cualquiera de los supuestos previstos en el artículo anterior. • Art. 220-247 civil registry law II. Acquisition of the spanish nationality • Spanish system: • Ius sanguinis • But exceptions if the child would be stateless, it receives the spanish nationality • Art. 11 spanish constitution: • Fundamental, provision! • Art. 11.1 CE: regulation by law: we have to have a law to determine the nationality 7 • 3 rules: • Reposition of nationality: ius soli, ius sanguinis →state has to choose the system • State chooses between these systems (idea of integration or not) • Constituional dimension (which have to be respected): ■ Art. 32, 39 CE (derecho matrimonio, protección a la familia) ■ Principles oft he constitution: equality between alien and nationals, Art. 13 ■ No discrimination ■ Ex. Some constitutions want inmigrants to learn their language (ex. Dutch system) • Spanish criterias of position of nationality: • Ius sanguinis (law of blood, transmition by parents) Idea: otherwise spanish people all over the world, can’t be limited • Art. 9.1 ? Civil code: law of nationality determines personal status • Dealing with minors: law of nationality protects them against statelessness, or when they have no documents: system allows us to treat them like Spanish nationals (even if they don’t receive the Spanish nationality) • Constitutional principles in acquisition of nationality • There are two traditional tipes of nationality in Spain • Original Spanish people (they receive automatically the nationality without intervention of the individual, it is given by the state) • Non-original/ derivative (abgeleitet) Spanish people (they have to ask for nationality, receive it not automatically) →different treatment Ex.: guardians of the king: only original Spanish people; Original Spanish people can’t be stripped of their nationality; Art. 20 Código Civil: they can’t take a nationality • Require the Spanish nationality, Art. 24 Codigo Civil, Art. 23 CE →difference between these nationalities is becoming more and more flexible (causes problems) • Comparison with other countries of the EU: same system like Spain, but different conditions of acquisition of the nationality Automatic acquisition of Spanish nationality • Art. 17.1, 19.1 Codigo Civil • Automatic acquisition only by original Spanish people! • 1st: This is the first form of acquisition by ius sanguinis (doesn’t matter where you were born) • Constitutional principles: • Art. 14 CE: equality ahead law • Art. 39 CE: protection of family • 2nd acquisition: by adoption, Art. 19 Codigo Civil • If you’re adopted, you are Spanish by birth (kind of fiction) • No difference between gender, language: only important: parents are Spanish, so the child too 10 • The child will be original Spanish (even if the parents aren’t original) • If the child being adopted has more than 18 years, he has to acquire the Spanish nationality • It must be a full adoption (not partially) • 3rd acquisition: by birth in Spanish territory, Art. 17 Codigo Civil (important) • =ius soli • Only if there is a link to Spain and the ius sanguinis isn’t applicable • Guarantees the Spanish nationality • Art. 17 c: Avoids statelessness; protection of minors Ex.: if the other state doesn’t allow the nationality to the child (if another law of another country gives the nationality to the child, it will not be Spanish national); Or both parents are at time of birth stateless, and the child is in Spain • Supports immigration: people who live since 30 years in Spain, can be Spanish nationals after some generations • Art. 17 b: Facilitate integration (but one condition is, that at least one parent has to be born in Spain) Exceptions for children of a diplomatic Non-autonmatic acquisition of the nationality • 1st acquisition: by option, Art. 17, 19, 20 Civil Code • People linked to Spain • You can choose between the original and derivative nationality • Conditions: ■ Declaration of will (because acquiring nationality is your choice; declaration must be clearly) ■ Art. 20.1 Civil Code: people who can acquire the nationality by option are: • Adopted people • Born in Spain • Adopted after being 18 years old, Art. 19.2 CC • Ways to manifest option, Art. 20 • Loss of the other nationality (if you’re from a third country) →the double nationality isn’t the principle/ general rule • You have to be registered in the civil registry • 2nd acquisition: by naturalization • Carta naturaleza, Art. 21.1 CC • declaration by the competent state/ authority and after that declaration of the individual (because it’s an option!) ■ First the competent authority must recognize the individual • Art. 23 CC • Naturalization by residence, Art. 21.2 and 22 CC ■ Only if it’s legal residence registered in the civil registry and fulfilling other conditions (ex.: declaration of will) ■ Time limits, Art. 22 CC: • Normally 10 years legal residence, but there are exceptions 11 • Refugee status: 5 years (reason: special status and special circumstances, objective: integration) • 2 years: people born in Latinamerica, Andorra, Philipines, Portugal, Ecuatorialguinnea (reason: particular relationship to Spain) • 1 year: specific individuals with special link to Spain: • Born in Spanish territory (parents: foreigners) • Person decides to opt for nationality • Care by Spanish nationals • Married at least one year with a Spanish national when acquiring nationality (not divorced, no marriage of convenience) →fastest way to acqire nationality • Widow (Witwe); even if the dead person wasn’t Spanish national • Born outside the Spanish territory, but parents or grandparents are original Spanish nationals ■ Art. 22.3 CC: conditions for residence • Legal: authorization by competent authorities (recognized by the state) • Continue: not left the country for a certain time) • Fulfilling conditions before acquiring nationality (not after) ■ The nationality can be denied even if conditions are fulfilled, reasons: • National interest (only serious reasons) • Public policy (öffentliche Ordnung), definition: All values/ objectives a state has relating to the law or constitutional or social principles; the laws, priorities and governmental actions that reflect the attitudes and rules selected for the public; means by which a government maintains order or addresses the needs of its citizens through actions defined by its constitution; manifests the common sense and common conscience of the citizens as a whole that extends throughout the state and is applied to matters of public health, safety, and welfare. It is general, well-settled public opinion relating to the duties of citizens to their fellow citizens. It imports something that fluctuates with the changing economic needs, social customs, and moral aspirations of the people. Public policy enters into, and influences, the enactment, execution, and interpretation of legislation. →wide concept, rules; very abstract; used by a state to refuse • By possession (Besitz) of status • Art. 18 CC 12 • How is the legal standing, which the person deserves (verdienen, bekommen) from the legal system? (which law applicable for Spanish and for foreigners?) • The Spanish private international law has chosen the connecting factor “nationality” that determines the personal status and the applicable law →so there are problems when a person has 2 nationalities or no one (sometimes we don’t have institutions, other countries have, and don’t know if we have to recognize them or not, ex: polygamy: we don’t have this institution in our legal system; ex.: certain adoptions, surrogacy) →the nationality garants rights, so we have to deal with these problems • Double nationality and how to deal with it • There are situatios in which two states attribute the nationality to one person →conflict of nationality • Plural reality: diverse instruments (in some situations we have a leak of legal response/ coordination) • But it is very important to rule this because otherwise it causes many daily problems with the legal status (and everything that makes you having rights and obligations is having a legal status/ legal framework) • Way receiving double nationality ■ International provision/ convention • There are many conventions of double nationality (ex. Latin America, Portugal, Philipines, ...) • Art. 11.3 CE: “El Estado podrá concertar tratados de doble nacionalidad con los países iberoamericanos o con aquellos que hayan tenido o tengan una particular vinculación con España. En estos mismos países, aun cuando no reconozcan a sus ciudadanos un derecho recíproco, podrán naturalizarse los españoles sin perder su nacionalidad de origen.” →guaranty of double nationality (you acquire the 2nd nationality without losing your nationality (even if the acquired nationality system doesn’t allow it) →idea: preserve/ save the Spanish nationality (another ex. Also is: you receive the Spanish nationality in a period of two years back after losing it) • Since 1978 the number of treaties about the double nationality didn’t change • In practise: advantages: • less time for legal decisions concerning the nationality • you don’t lose your nationality, you don’t have to renounce it • time limits are shorter ■ Recognized by state (provided) • Problems with double nationality: to specifie which nationality do we have to use? ■ Ex.: person with Colombian and Spanish nationality and both are recognized by the state 15 →we have a particular system of rules, that state clearly what is the connecting factor ■ Art. 9.9 CC: “9. A los efectos de este capítulo, respecto de las situaciones de doble nacionalidad previstas en las leyes españolas se estará a lo que determinen los tratados internacionales, y, si nada estableciesen, será preferida la nacionalidad coincidente con la última residencia habitual y, en su defecto, la última adquirida. Prevalecerá en todo caso la nacionalidad española del que ostente además otra no prevista en nuestras leyes o en los tratados internacionales. Si ostentare dos o más nacionalidades y ninguna de ellas fuera la española, se estará a lo que establece él apartado siguiente. ■ Order: which nationality: 1. Rules of international treaties 2. Country of last residence 3. Last nationality acquired ■ Art. 9.1 CC: “La ley personal correspondiente a las personas físicas es la determinada por su nacionalidad. Dicha ley regirá la capacidad y el estado civil, los derechos y deberes de familia y la sucesión por causa de muerte. El cambio de ley personal no afectará a la mayoría de edad adquirida de conformidad con la ley personal anterior.” →the personal law will be determined by the citizenship/ nationality (capacity (Vermögen), personal status, name) ■ In ex.: determine which is the active nationality • In Spain: Spanish nationality • In Colombia: Colombian nationality ■ 2nd ex: a man from Honduras wants to marry a Spanish man • In Spain it’s allowed since 2005 • Art. 9.1 CC: determines whether they can marry • Spain: yes • Honduras: no (national law doesn’t allow it) →so the Spanish man doesn’t have problems, but the Honduran • Solucion public policy? These are the constitutional principles/ no discrimination between gender • We want to protect our legal system and our values: the Honduran law is legally, but it’s against the Spanish legal system and their public policy →Spain doesn’t recognize the polygamy, children marriage,... But what happens if we don’t recognize these institutions in general? Doesn’t it create more problems than it solves? →we can’t find general solutions, we have to decide case by case (sometimes it’s better to recognize the institutions, so the people have more rights and less problems) →especially when people have to be protected (but we don’t recognize or allow these institutions in general) Conflicts between nationality and private international law • There is no globalization of nationality systems, every country has its own • Double nationality agreements work really good: 16 • Idea: recognition of two nationalities, effectiveness of two nationalities, it allows to give effect only to onw of the two nationalities (so it eliminates the problems which the double nationality causes) • Art. 9.1 CC: we need the nationality to determine the personal and civil status and the capacity of one person (that’s why we have to chose one nationality, otherwise we can’t determine the personal status and we have two links and two legal frameworks) • P: what happens if we have to recognize two nationalities but we don’t have conventions? • Decision case by case • Spain: Art. 9.9 CC: there is listed which nationality is applicable • Art. 49/50 CC: marriage in Spain • Most times, when we don’t have agreements, the double nationality isn’t recognized (reason: legislator thougt about it but didn’t want it), often people are obligated to renounce to the Spanish nationality (but the Spanish legislator tolerates some situations: so the Spanish authorities can treat them like they are Spanish although they have renounced their nationality) • P: is Art. 9.1 CC only applicable when there is a link to Spain? • Art. 9.9 CC: primary Spanish nationality is applicable: easier for judges to apply the Spanish law • Art. 10 CC: if no one of the two nationalities is Spanish • There is also a special agreement/ convention about married women • The connecting factor nationality causes some problems, but the solution is: case-by- case-law • France was the first country dealing with these problems concerning nationality (specificly: forced marriage): in some cases it’s better to recognize certain institutions, so in consequence the victims have more rights →we have to adopt our legal system to the foreign institutions (but it’s not forcing) Refugees and stateless people • There is a lack of coordination between the different states (because there is no harmonization of regulations about nationalities); lack of being able to recognize the nationality (in case of statelessness) • Statelessness: • Ex.: boy from Bangladesh who can’t identify himself: Art. 9.1 CC: law from Bangladesh would be applicable, but he can’t identify himself, so no one is sure if he’s Bangladesh: in consequence he isn’t recognized as Bangladesh national • Ex.: refugees without passport: no confirmation of nationality; if refugee lies, it will be written in protocols • Definition of statelessness: person who lecks a nationality (maybe because he lost his nationality or doesn’t want to show it)/ negative conflict of nationality (we don’t have a nationality on which we can base the legal status) positive: two or more nationalities • There are many conventions with the object of avoiding statelessness/ prevent 17 ■ it’s the only territory in the world, where the free movement of person is guaranteed • content: ■ EU has no internal borders and no national controls (so you can move from one country to another without controls and without diplomatic conflicts) ≠USA ■ Removal of checks in internal borders ■ But schengen also allows to limit the free movement ■ There is only one external border (but when the foreigner has overcome (überwinden) this one border, he can move freely in the territory of the EU) →it is more a political than physical idea: in reality the national borders and the souveranity of the member states exist, but there is freedom of movement) ■ Humanization/ same procedure: In the whole EU there are the same conditions when you want to enter in the Schengen area (ex. To receive visa or for refugees, same treatment) →same border controls ■ There is a police corporation of the EU and a corporation in judgements (enforcement to criminal judgement) ■ You can travel, work, live in other countries of the EU without permits ■ There has to be a natural trust of the countries that all the other countries follow the law and take seriously their external border controls (so trust is the main principle for the Schengen treaty) →Schengen really creats a true union (without national controls, the citizens feel the union, more integration) • UK didn’t sign the Schengen treaties, but coorporates with the EU, so in consequence there are the same rights • Romania and Bulgaria didn’t sign the treaty • Schengen is the main system for integration in the EU • There were/ are many discussions about the free movement ■ Only for EU citizens/ members of the Schengen area? ■ Many countries wanted intern border controls for third country nationals • With the Schengen treaty were introduced also compensatory measures • There is a system of information/ database about the people from third countries coming to the EU and crossing the external border (registration, informations about criminal proceedings), but there are some lecks of informations/ difficult to avoid terrorism The Schengen treaty • Schengen is the legal institution of framework of the EU • Schengen is a part from the EU, so the treaty can be checked by European institutions: • ECHR 20 • ECJ • Obtains free movement • Democratic parliamentary control (the European parliament controls Schengen/ builds the legal framework for Schengen) • Set out by the treaty of Amsterdam • “body of law” = everything that the institutions (Council, Court,...) have decided in connection with Schengen (for example: security controls, rights and duties, visa,...) • Middle of the 1990: development of Dublin treaties (=regulations about refugees and asylum) →related with Schengen • Participation of countries: • Two types: ■ some countries have ratified the treaties ■ others haven’t ratified, but they are applying the regulations • Denmark: ■ Has signed the treaties, but Denmark has a special status in the EU (own decisions about the specific measures) ■ Denmark didn’t accept all regulations (only ratified specific treaties) ≠UK • UK: ■ UK didn’t sign amended documents ■ 1999: UK decided to corporate with Schengen (they aren’t a part of Schengen, but they participate) • Relations with 3rd countries: Iceland, Norway,... ■ 3rd countries can be part of Schengen ■ Particular relations ■ Ex.: there are some agreements of free movement signed between 3rd countries and the EU (ex. With Switzerland) →if there are agreements, these 3rd countries can participate in discussions about Schengen and all issues who are in relation with it • In the last years there were more border controls because of migration: especially in Italy (France) ■ Problem: in the Schengen area all countries should do the same/ no extra border controls →especially countries having an external EU border have to control the people from 3rd countries ■ In terms of terrorism: need to protect all citizens – limiting rights, civil guarantees • Iceland, Norway, Sweden ■ Northern passport union ■ 18th May 1991: treaty with the EU ■ They are able to participate in the process of Schengen • The countries can ask for implementation of measures in Schengen (ex. More security measures) ■ All the implemented measures become a part of the European law (= protected by them) 21 ■ Art. 2.2 TFEU ■ Art. 2.4 TFEU ■ Countries being part of the EU have to apply Schengen (because it is part of the TFEU) • Free movement is recognized for nationals and foreigners • Transposition of the directive of free movement in Spain: r.dc. 240/2007 For exam: know the schengen treaties Statelessness in Spain • Ex.: single mother from Colombia (Colombia doesn’t guarantee automatically the nationality, you have to register yourself before to acquire the nationality), Spain (ius sanguinis) → without registration, the child has no Colombian nationality and no Spanish nationality (because of ius sanguinis) So Spain grants the nationality to avoid statelessness (but it isn’t original Spanish nationality/ Spaniard) →child becomes European citizen (so the EU treaties are applicable for the child and his relatives = mother has 5 years of residence, R.Dc. 240/2007) • P: in practise: in most of these cases, the mother only receives a residence for 1 year because of social grounds. After this year the residence status must be changed and the mother has to fulfil all conditions for that in 8 months. In the majority of cases, the residence is denied, so the mother has an illegal residence →should not happen EU legislation: directive 2003/86/EC on the right to family reunification • General legislation in EU:m • Regulations: Are directly applicable without changes, no national law/ transformation is necessary • Directives: Not directly, but indirectly applicable; the country has to transpose it in national law (countries can change certain things, directive only is the basis); so in consequence there are different transpositions in every country (there is a certain harmonisation, but not everything is the same) • If the country doesn’t transpose the directive correctly, the ECJ judges Directive 2003/86/EC Short history: • 1st May 1999: Amsterdam treaty took effect adding Title IV “Visa, asylum, immigration and other policies related to free movement of persons”. • December 1999: European Commission presented proposal for Directive. • 6th September 2000: European Parliament approved proposal with 18 ammendments. • Two years negotiation: final amended proposal 2nd may 2002 22 • Codification: 3 types of participation of MS: • MS that have codified the right to family reunification of spouses and minor children • MS that have partially codified this right • MS that have not codified this right • 17 members have codified the right to family reunification for family members of the nuclear family (Austria, Belgium, Czech Republic, Finland, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Poland, Portugal, Slovakia, Slovenia, Spain and Sweden) • Belgium, Greece set extra conditions: spouse and children have to come to live together with the sponsor • Spain: extra condition that the children have to be dependent on the parent • Italy, Finland, Hungary, Poland, Sweden: rules for family reunification for members of the nuclear family were liberalized with the Directive ■ Italy: no enlargement of family members, but eliminated barriers ■ Sweden: spouses (and cohabitatiting and registered partners) shall be granted a residence permit. Before Directive: may ■ Hungary: spouses only have a right to family reunification if the sponsor has a settlement permit (not residence permit); If the marriage takes place more than 2 years before the application, a settlement permit will be issued without requirement of previous residence in Hungary • 4 members have codified the right to family reunification for members of nuclear family partially or partially incorrect: Cyprus, Netherlands, Germany, UK • Cyprus: spouses only have right if marriage took place at least one year before application; minor children over an age of 15 years have to be dependent of their sponsor; if this is not the case, they will also be allowed entry into and residence in Cyprus: this right is not codified in law, discretion of Migration Officer • Netherlands: spouses and children have codified rights to family reunification: However, important barriers are in place in form of fees for visa, residence permit; children and spouses being 16 or over 16 years and not obliged to go to school are required to pass an international exam abroad before they are allowed to enter the Netherlands. In cases of family formation, an income requirement of 120% of minium wage for 23-years-old workers is required • Germany: minor unmarried children of foreigners under 16 years old shall only be granted residence if both parents or the parent with the sole right of care and custody holds a residence or settlement permit. Minor unmarried children of foreigners may otherwise be granted a residence permit only if necessary in order to prevent special hardship on account of the circumstances (childrens wellbeing, family situation taken into account) • UK: Not bound by the directive. A right to family reunification for family members is partially codified in this MS. Rules on reunification with minor children depend on wether the child is joining or accompanying both parents or one parent with a settlement permit. The rules for one parent bringing a child to the 25 UK hinge on wether that parent had “sole responsibility” for the child (a very had criterion to test). Children accompanying or joining parents who are in the UK with limited leave can also apply if they are unmarried, have not formed an independent family unit, will be adequately maintained and accommodated without recourse to public funds and if they will not remain in the UK for longer than the leave given to their parents. Spouses can be admitted to the UK if the sponsor is setteled. If not, the rules sometimes allow admission for limited periods. • MS that have not implemented the right to family reunification for members of the nuclear family: Estonia, Ireland, Luxembourg, Malta • Estonia: No obligation to grant a (temporary) residence permit to spouses and minor children. In the case of minor children, a temporary residence permit may be granted only if the parent is a long-term resident who permanently resides in Estonia. If children lead an independent life, they are not considered “minor” even if they have not reached the age of 18 and are unmarried. Spouse is required to shar close economic ties and a psychological relationship with the sponsor, the family must be stable, the marriage must not be fictitious and the application for a residence permit must be justified →it is not asylum! • Luxembourg: Legislation does not contain special provisions for third-country spouses of third-country nationals. Law of 1972 of residence permit applicable. NO right for minor children either. • Malta: No procedure for family reunification. Maltese Refugees Act: reference to dependent family members who might join a refugee. Definition of “dependent family members” in the act is slightly different from that of the Directive. • Ireland Is not bound by the directive: no codification of the right to family reunification for spouses and minor children Unmarried partners: (more problematic because there is no prove that they are a couple) • Art. 4 (3) of the directive provides for the right to family reunification of third-county national unmarried partners, who are in a duly attested stable long-term relationship with the sponsor, or to whom the sponsor is bound by a registered partnership. The article is NOT of a mandatory nature. A minority of MS provide the right to family reunification for unmarried partners: Belgium, Finland, Denmark, France, Netherlands, Sweden, UK: Demand proof of a stalbe long-term relationship: • Denmark, Finland and UK: This means that partners must prove that they have been sharing the same household for at least 1,5 (Denmark) or two years (Finland, UK). If partners have a child in their joint custody, the requirement of a shared household is waived. • Belgium: 26 Partners have to prove that they have been in a stable long-term relationship for at least one year. It is not necessary for the partners to have been living together. However, in order for the age criterion of 21 to be waived for both partners, the partners must have proof that they have been living together for at least one year before the sponsor arrived in Belgium. The relationship must be exclusive. • Netherlands: Unmarried partners have a right to family reunification if the relationship is permanent and exclusive • Sweden: Previous examination of the seriousness of a cohabiting relationship with someone who is residing in or has been granted a residence permit in Sweden no longer applies. A condition for family reunification for unmarried partners is that their relationship is serious and there is no particular reason to think otherwise • France: Unmarried partners and other family members to whon the constitutional right to family life cannot be refused have a right to family reunification. When judging whether the refusal to admit an unmarried partner will constitute a disproportionate infringement of the right to family reunification, the nature of the personal and family ties in France are taken into account. Furthermore, living conditions of sponsor, his or her assimilation into French society and the nature of ties with the sponsor’s family (the partners) who has remained in the country of origin are considered. The conclusion of PACS (= pacte civil de solidarité) can establish personal tie in order for residence permit (grounds of private and family life) to be granted on the grounds of “private and family life”. There should be proof of existence and stability of ties in France. • Idea: harmonisation, difficult if the transposition in every country is different (but the framework is the same: basis is the directive) • Directive is the frame of reference US-Birth right citizenship • announcement of President trump, change the system through presidential decree • would be change of 14th Amendment (1886) of the US-Constitution • ius soli for a long time, what means that also people from Non-US-citizenship are allowed to hold the US citizenship • 10.1. SC: provisions from the Constitution (?) linked to art. 13: task to determine public freedoms after international treaties • Ley Organica 4/2000 (rights of foreigners) • foreigner that comes to Spain should admit the principles of Spanish culture • personal believes that are against Spanish legal system eg. Polygamy are not tolerated • question in society and legislation: To which extend do we have to tolerate the religious beliefs of foreigners? How do we legislate and allow the foreigners to live the life that is preserved in their countries? →matter of public policy 27 foreifners of ley organica 2000. The constitution doesn’t mention foreigners so this gap is filled by the law and the law establishes art 5.1 that foreigners can move freely through the Spanish territory and choose their residence but it mentions only those foreigners residing under ley Organica 2000 title 2. They mention all those foreigners which are legally staying in Spain. The interpretation of the foreigners and their movement and the legal status in Spain does not limit the freedom of movement of foreigners in spain. There are limits to freedom of movement in Spain- this possibility is admitted in some instruments of human rights art 12.3 of international covenant civil and political rights provides for restrictions-to protect public health, public order, national security, public morals. The countries of the covenant must decide what is morally inacceptable and to restrict the freedom of movement is respect to morals. Public health etc easier to interpret but public order is complicated as what is public order? Definition unclear. Public order is what allows us to limit the majority of civil rights and liberties, the name of public order is the easiest way for the government to strip us of civil liberties. It is widely used under system of international human rights. Art 5.2 of Ley Organica sets out list of exceptions to free movement. Art 5.1 says the aforementioned foreigners will enjoy this right without any limitations apart from those…. The right to free movement and choice of residence is established through judicial authorities…” If we have precautionary measures then these precautionary measures can limit free movement and this is normal to happen. Alongside this article, art 5,2 states there are certain restrictive measures- if they are put in place through siege, or state of emergency then the freedom of movement of foreigners can be restricted and also movement of Spaniards can be restricted. Also exceptionally, for public security, and individualised reasoned and proportioned manner, circumstances in each case by a resolution of the ministry… provided by the law”- art 5.2. Means if ministry of interior or government feels exceptionally they need to limit the freedom of movement of anyone, this has to be done by a reasoned resolution from the ministry of interior and has to observe safeguards that due process and procedures in place that the law puts forward. Issue is legal notions undetermined as it says public security reasons so what is a public security reason? That is the question. Is undetermined. We cannot pretend the law is specific, the law must be general in nature as we must be able to apply it to as many situations as possible. The use of undetermined legal notions have given rise to ample case law during the period of application of the X 1985 and in that sense, the courts were clear as to demand that public administration must interpret in substantiated manner. You cannot include everything under public security reason, need to reason every single one of these policies. The ministry of interior when deciding what are public security reasons they need to be very thorough in considering the reasons which are part of this category. We cannot go taking away civil liberties without having a good reasoned decision. In any Case, the restrictive measures will have a time limit. Cannot be permanent restrictive measure. Has to be proportionate, as for art 5.2 annunciates certain measures that can be adopted. 30 In last instance it is the public authority that is in charge of concreting the measure it deems convenient. Determined legal notions has extensive case law behind it so the authorities will have to consider all the case law before putting in place restrictive measures. The other right og foreigners is right to family and privacy. International isntruents have the fact they are intertwined in practice: the right to accompany the family and be protected by public power- art 39 Spanish Constitution. The important thing here is the consideration of family different from consideration of each of its members. The case ins Spain of single mothers what were mothers of Spaniards but didn’t have the conditions to stay in Spain legally and couldn’t be deported as mother of citizen of the EU but also couldn’t legalise their situation because of the laws. If we protect the family as a whole, that is why they cannot be deported as the child is a EU citizen and the mother of child is the family of that child and the two considered as a family is protected under TFEU. Someone may be illegally staying in the country but the right to family is more powerful than the fact that someone has a criminal record and has seen the European court of justice has been clear in that sense. Case in Spain from a man who was a Colombian man with two Spanish kids and had criminal record and when went to renew residence he was denied as had criminal record so can’t continue residence in Spain, but he had the custody of two Spaniards so couldn’t be forced to leave. European Court of Justice said TFEU protects the European citizens from being deported and fact he had criminal record did not mean he couldn’t have legal residence by way of being a family member of a European union citizen. Everywhere in world, one of the main things in government asks is criminal record. He had a criminal record even here in Spain- had committed crime in Spain but he was allowed to legally stay here in Spain as he was father of European Union Cit. Not every father. Mother of EU citizen can stay in this way. He was able to prove that if he wasn’t here in Spain, the children wouldn’t be able to survive. There is another perspective in this case, refer to the right that allows to enjoy family life. Resident foreigners, the ley organica makes distinction between legally resident foreigners and non- resident foreigners. When in reality, even if aren’t legally residing in Spain, you have the right to all those things and the ley orgnaica states that resident foreigners have right to family life. As for family life, there are many people in Spain that get picked up every week as they are not legally residing in Spain and the law doesn’t grant them residence but they cant be deported as they are family of EU citizens. It odd that the law hasn’t been changed in Spain in that sense. Some people with no criminal record, try to make living and if police asks for documentation they go to jail or centre of ? and cannot be deported. In a direct manifestation of this right to family is the right to family re-grouping. Any legally residing foreigner in EU state can regroup their family from their home countries following certain conditions set out by laws. We have a lot of case law-. Political rights and what the Ley Organica gives in terms of right to demonstrate. The first set of rights altered by amendment to law 8 2000. This ley 8/2000 comes after law 40/2000. The right of assembly- section 31.1 constitution- right of weapon-less assembly is recognised. ECHR incorporates this in art 11- peaceful assembly right. Including the right to join and form trade unions. The exercise of the right in terms of art 11.2 of convention cannot have restrictions other than those prescribed by law and necessary in interest of national security and public security. We continue with indeterminate concepts. Art 7.1 of ley organica establishes…. The right to assembly was one of the rights admitted and resulted in an amendment with the previous wording the entitlement of the set right was contemplated in a general manner. Only in case where foreigner legally residing in Spain was he allowed to practice right to assembly. In practice, if are in situation of this type, foreigners tend to not go to the judicial authorities. What happens with labour rights? Aren’t these fundamental human rights? Are we entitled as humans to the right to assembly? The law doesn’t protect people just because they don’t have legal residence? The human rights courts have said all the rights should be protected. Under the table, someone from Cuba that overstays their 31 legal stay in spain- they cannot get contract to legalise their situation in Spain, they are hired at bar as waiters, they are still working, do they have the essential rights of any worker? Those are the questions we must ask in terms of the immigration laws. Immigration laws are there to try to find an order or try to legally establish who are the ones who are able to legally stay in country. Ley organica and constitutional courts say that the first part of art 7 wasn’t constitution as right to demonstration is not linked to your legal situation in particular place and so was changed after. Sectipom 2 art 7 shows conditions that need to be met to exercise right of assembly. The promoters need to alert the public authority, in Spain is minimum of ten days and maximum of thirty days before that need to alert the authorities that demonstration will be taking place. In principle, they cannot tell you not to demonstrate but can say you cant demonstrate on that particular day or in that particular place. The right of assembly and demonstration are general rights. The right of free association is linked to right to participation in public life. Art 22.1 of Spanish constitution and developed by laws in spain. The amendment to this law was taken back through parameters of law of 1985. The right was dependant on legal status in Spain of foreigners. Every foreigner has same rights as Spaniards now- this is the amendment. If you are trying to associate for illegal purposes you don’t have the right of association. The right of public participation- the right to vote, and traditionally a reluctance of foreigners in public participation. 13.2 SC allowed Spaniards to vote. European process of integration now means amendment of constitution in 1992 which allowed foreigners to publicly participate. We have the possibility to allow foreigners from other MS of the EU to present themselves as candidates or even the right to vote for those candidates also. The most important novely derived from amendment to the law is, is no longer subject to the criteria. There is the right to active vote and the law says the electoral law says regardless of what the law says, foreign residence in Spain . If they fulfill conditions for active voting you need to tell the authorities. You have the right to present self as candidate to European parliament and if you are cit of EU you can vote for candidates and be a candidate. Public life- the ley orgnaica specifies that registering in district have all the rights derived from that legislation in the local regime. If you are legally registered in Spain, you can go to the city hall and ask to be heard in different matters, even if you are not Spanish. Art 14.1 of local regime act establishes the right to be a voter and use voting services. The right to education. The law regulates two rights: the right to education and the right to perform educational activites. If are foreigner you have the right to be a foreigner especially if you are a minor protected by the law. This particular right to education includes access. In spain must study until you are 16, after that can do whatever you want. Even if parents aren’t legally ressiding in spain, you can still access public education. It doesn’t matter if your parents are legally residing as constitutional courts have said that over the age of 18, education is for everyone in Spain. Someone with no legal residence can enrol in university. Encompasses the public obligation to enforce social integration. Art 9 states foreigners residing in spain illegally but have kids and want to get residence you must demonstrate that you are educating children or children are part of the public education system in Spain. These are all general rights. In practice things can be different. The application of the different provisions and rules in place will depend on the judges and the public authorities that have t apply these things. 32 • In most EU countries, there are different policies regulating family reunification for nationals and immigrants, often with a distinction made between immigrants who are EU nationals and those who are third-country nationals/ non-EU citizens. • When family migration was discussed at the European Council in 1999, family reunification was seen as a way to facilitate the integration of migrants. The idea was to model the family reunification rights after the liberal rights granted to mobile EU citizens consolidate in the Free Movement Directive. • By the time, the negotiations for the Directive had reached their final stage in 2003, the perspective on family reunification was that this hindered migrants’ integration. (because the family stays in its group, own areas and own group: it is easier for them to stay with people with the same culture, language, tradition) • The “minimal harmonization” of family reunification policies has meant to some EU countries seeking to restrict their policies, are able to embark on “a race to the bottom” when they seek to implement increasingly restrictive family migration policies. • Raising age of requirement • Raising income requirement • Instituting pre-departure integration measures • Limiting to nuclear family • The Netherlands, Denmark and Austria: “European hardliners” where anti-immigrant parties have been part of shaping legislation. Public opinion and policies • Public opinion can be defined as an aggregate form of attitudes (Haltung, Einstellung). Attitudes are individuals’ preferences in specific situations. When analysed at the aggregate country-level they are referred to as social attitudes or public opinion. • Policies are defined in two ways: differences between immigration and immigrant policies: • Immigration policies: rules and procedures governing the selection and admission of foreign citizens • Immigrant policies: conditions provided to resident immigrants. • Simply stated: immigration policies are directed at people who are not yet “here”, while immigrant policies are directed at people who are already “here”. Family migration policies include both of these areas: rights of the already present immigrant (sponsor) and entry of their family members. Opinion-policy nexus (Verbindung, Verknüpfung) • Social attitudes inform voting, with a majority opining being reflected in majority voting. This majority voting in turn indirectly influences policies. Politicians can not act systematically against public opinion and hope to get re-elected. • We have to change the public opinion in order to change law/ policy/ regulations (without the support of public opinion, changes in the law are very difficult) • National security: difficult to find public policies that are open but have enough national security Gender role attitudes – family policy nexus 35 • Gender role attitudes are the attitudes about what roles men and women should adopt within the family. These roles refer to how the earning of the family income should be arranged (single, shared-earning, or 1,5 model) and how “care” should be arranged, mainly referring to childcare (one parent, or shared between partners, other family members, and/ or with state/ market institutions). (ex.: in almost every country, the mother has the childcare if there is a divorce) • The Netherlands: as family norms became more egalitarian, these egalitarian family norms were not transferred to family migration policies. In fact, an increasingly traditional view of the family was projected on immigrants. • For example: the appearance of the gendered notion of “dependency” in family migration policies, referring to the income and housing requirements for sponsoring family members. These requirements necessitate the sponsor to provide (versorgen) for the incoming family member, which is very much in line with the single-earner view of the dependency of one (female) spouse on the other (male). • A different approach could be to allow for the earnings of the incoming family member to count towards the income requirement. This would mean that neither partner would be expected to provide for the other. (Sweden: required income, single earner salary) • Reasoning for the influence of family norms on migration law is that the “family” is an important way for the native population to distinguish themselves from the migrant “other”. Family migration is construed as a problem of culture, identity and belonging. • Whereas the “western” family is imagined as modern, emancipated and egalitarian, the “migrant” family is associated with tradition, patriarchy, oppression and even violence. • Gender norms are used specifically as a marker because culture is arguably fundamentally about gender roles with women at the center of ethnis and national reproduction. Immigration/ immigrant opinion – immigration/ immigrant policy nexus • Suppose that the public perceives (bemerken, wahrnehmen) migration predominately as a phenomenon associated with dead bodies in the Mediterranean, human trafficking, and unemployment. Calls for tighter (fester, stärker) border controls are often the consequence. Policy – opinion nexus • This nexus is for newer social policies, only for policies not yet institutionally well- established would politicians be open to public opinion. • For well established welfare (Sozialhilfe) policies (Strategie, Politik, Grundsatz), there has been found a policy-opinion nexus, in other words that policies influence opinions. Family migration policy? New or old? • Some authors have discussed that the policy-opinion nexus and the opinion-policy nexus could work together, reinforcing each other. Shortly, for example, positive attitudes toward immigrants may influence inclusive immigrant policies, which then positively influence further attitudes toward immigrants. (ex.: in some countries, the treatment of immigrants is very violent, even if the countries don’t have many problems with immigrants.) 36 • For gender role attitudes it may be that if there is a negative relationship between public opinion about gender roles and family migration policies, these restrictive family migration policies are then used to further distinguish the native population from the migrant “other”. Can divergent public opinon about gender roles and/ or immigrants explain the lack of harmonization of family migration policies in the EU? • There has been very weak (schwach) harmonization of EU family migration policies and thes policies remain very different, with very little harmonizing influence of the Family Reunification Directive. • Where there is stricter harmonization of policies, there is also a greater convergence of public opinion for example: for the strongly harmonized policies on female employment, there is greater convergence of public opinion than for weakly harmonized policies such as childcare. (but we can’t verify (nachweisen) that there is an influence, we don’t have the dates) • There is no evidence for family migration policies influencing public opinion. This contests the normative theories of law that suggest the existence of a policy-opinion nexus. • Public opinion about immigration/ immigrants does not influence family migration policies, but public opinion about family norms does influence family migration policies. Denmark illustrates this finding: a country with very egalitarian gender norms and very restrictive family migration policies. There are some exceptions: • Sweden: has very egalitarian gender norms but very open family migration policies • Despite (trotz, ungeachtet) such exception, on average (im Durchschnitt), public opinion about sharing care in the family is found to have a direct negative effect on the openness of family migration policies. Open questions • Is there such a thing as the attitude of the “majority” and is this what influences policies? • Can we say that only certain elements of a society influence policies? (the elite, or that politicians only appeal to one section of the population) • Should we measure not only the standing policies, but the way they are implemented should be taken into account? (application by street-level bureaucrats) Making immigration work General situation: • immigration is among the defining issues or our time (UK voters, for example, have ranked immigration a close second to economy – and ahead of health – since June 2010) • anti-immigrant parties in the UK, France and Denmark enjoy levels of support of around 25% (by comparison, France’s National Front achievement in 1988 of 15% support caused a near-panic among the country’s political elite). • In the Netherlands, Denmark and Norway, anti-immigrant parties have altered the party systems and supported governments. 37 of 1 per cent of a national income of US$ 8 trillion, or approximately 10 days’ economic growth. An adjustment in the frequency or length of coffee breaks could produce the same benefit with no migration. • As for point b), the higher the level of state assistance, and the more immigrants draw on it, the lower the benefit of migration. Thus in California and New York, states with relatively generous welfare programmes and high levels of unskilled immigration, immigration results in a higher cost for the state than in other states. • Immigration makes countries neither rich nor poor, but it does change them. The largest effect of migration are distributional in nature. The chief economic benefit of immigration is wage depression, so when immigrants’ skill sets overlap with those of natives, unskilled migration will reduce the wages of the unskilled native workers (thus increasing inequality). Skilled migration, on the other hand, will reduce the wages of skilled workers, (thus increasing equality). • Thus, immigration to the UK from 1997 to 2005 depressed wages for the bottom twentieth percentile, increased them slightly for the top fortieth percentile and produced a modestly positive overall wage effect. • The effects are small: a maximum wage decrease of approximately 0,6 per cent at the fifth wage percentile and a maximum wage increase of approximately 0,6 per cent at the fiftienth percentile. In the US, the mentioned mid-1990’s sudy concluded that immigration reduced wages by 3 per cent from US$ 13,00 per hour to US$ 12,60. The reductions resulted in two other distributional effects: • To capital (employers pay lower wages) • To the immigrants themselves (employment expands as wages drop, and immigrants capture most on the private gain) • Finally, within federations there are spatial distributional effects: immigrants pay more taxes to the US federal government but collect most services (education, justice and health care) at the state level; immigration is thus fiscally net positive for the federal government and fiscally negative for the states • Given the complexities of immigration and the multiple variables at paly, generalization is difficult, but Philip Martin gets it right when he concludes that “adding immigrants to the labour force expands GDP (Bruttoinlandsprodukt) by slightly lowering wages and increasing returns to capital, with most of the increase in national income accruing to immigrants and employers.” Immigration and demography • Europe has a very low birth rate, at 1,5 children per woman (the replacement rate is 2,1). Can immigration ward off the effect of ageing and declining populations (increasing health and pension costs, increased debt per capita in the context of population decline?) • Dismissing immigration’s demographic effects for three reasons: • First although many migrant groups have higher birth rates when they arrive in Western countries, their birth rates tend to coverge with national averages over the medium term. • Second: the influxes of immigration required to maintain working-age ratios are massive and therefore politically intolerable. Germany would, according to UN estimates, need 3,4 million net migrants per year between 1995 and 2050 40 to keep a support ration of 4,4 (the number of workers below 14 and over 65 divided by those of working age). • Third and this is the intellectual advance, immigrants’ age like everyone else, making them an eventual cost rather than a benefit for the exchequer. • These points are overstated. Models created by the UN Population Division in 2001 demonstrate that even relatively modest levels of immigration lead to substantial differences. In a Germany without immigration, population woul fall from 81,7 million in 1995 to 55,8 million in 2050. With 240.000 migrants per year, population would fall to 73,3 million, thought the support ration would be halved by the absence of compensating measures (raising the retirement age, for instance). At the same time, whereas a problem deferred is not a problem solved, it is preferable to no deferral. • Imagine, for instance, that immigration delay population decline by 25 years. This is itself worthy (indeed, solving a pension crisis for 25 years would be regarded as a great accomplishment), but it also buys time for governments to enact other measures: raising the retirement age, the female employment rate and productivity. A gradual decline in population is easier to mange then a sudden plunge. • Reason for optimism: global demographic developments may work in Europe’s favour. An ageing Europe will inevitable experience labour shortages, especially in low-skilled care and service industries: cleaning, shopping, the preparation of meals, help getting in and out of the bath, and so on. If these are assumed through institutional care, the costs are likely to be enormous. As this demographic shift occurs, a very different scenario will play out in Turkey, large parts of Africa, the Middle East, and South Asia: young and growing populations whose economies will struggle to produce enough work. There will be thus a complemenarity of labour shortage and labour supply. The politics of immigration • Although the precise economic, social and demographic effects of immigration can be debated, on thing cannot: the management of immigration is only possible if immigration has broad public support, or at least indifference. If clear majorities consistently oppose current migration levels, then it is both a normative and political crisis: constistently ignoring the wishes of the electorate is hard to reconcile with liberal democracy, and doing so risks an ugly political backlash of the sort seen in the UK in the late 1960’s (the time of Enoch Powell), Germany in the early 1990’s (when refugee hostels were firebombed), the US in the 2000’s (when vigilantes guarded the US-Mexican border), and, to a degree, the UK again since 2004 • Until recently, public opinion research provided little prospect of avoiding the normative or political challenge. • A well-cited comparative analysis attempted to find out where immigrants were popular and concluded that they were popular nowhere: “Western attitudes towards immigration may vary over time, but the most widely documented and pervasive finding is that sizable proportions of national publics, usually majorities, either oppose increasing current immigration levels or favor reducing them” (Freeman, 1997) • More recent research suggests are more complicated pictures. A Gallup/ IOM study offers three new conclusions of direct importance for migration management: 41 • First, the volume of migration correlates with opinions on migration, but it does not correlate with a negative attitude towards migration. • Second, the percentage of respondents globally who want immigration kept at the same levels or to be increased (42,1%) is greater that those who want it decreased (34,5%) • Third, immigration is more popular in countries with high levels of immigration. In the top 10 receiving countries, 46,8% of adults believe that immigration levels should remain as they are or increase, which is almost 5% higher than the global average (though 47,5% desire a decrease). • Immigration is most popular in the countries with the highest percentage of temporary workers. The other findings – for example that the young (Russia excepted) and the educated support immigration more than the old and less educated – are consistent with previous research. Within Europe, majorities in Germany and Scandinavia wish to see the same or higher levels of immigration, whereas immigration is particularly unpopular in southern Europe and the UK. • In accounting for public attitudes to migration, there is a basic distinction between (relatively) static and dynamic factors (the percentage of old to young people) in the population are relatively static factors: the change only slowly, over decades. Economics, however, is a dynamic factor: economies can vacillate quickly, at times with surprising speed, between recession, boom and stagnation. • Economics might partially explain the northern/ southern European contrast: northern Europe is doing well economically, southern Europe poorly, and those respondents who regard economic conditions as “good” are indeed more likely to support immigration (IOM 2015). But this cannot explain the UK, which was/is enjoying solid economic growth. Rather, what ties southern Europe and the UK is a failure of migration management: Italy, Spain and Greece, because of geography and the UK, because of the decision in 2004 to allow immediate access for A8 workers, all created the impressions in their electorates that they have los control on their borders. • Such a loss of control invariably results in a public backlash: all the above-cited examples occurred when the state had little control over migration: because of relative openness to the Commonwealth in the UK, because of the Asylum law in Germany, and because of the challenges facing the US in controlling its southern border. • The particularly sharp reaction provoked in the most pro-immigration countries, such as Australia and Canada, by the arrival of boats containing small numbers of illegal migrants can only be explained by the symbolic assault on sovereignty contained in arrivals by boat: landing in front of the cameras, they declare border controls to be ineffective. Islam, Islamophobia and free speech • Since 11 september 2001, the global immigration debate has centred, often to a excessive degree, on Muslims and Islam • There are 3 post-9/11-developments: • The first is an upsurge in anti-islamic sentiment and a mobilization around the threat posed by Islam to Europe and to European values. (literature that exaggerates that demographic effect of Muslim migration and fertility and construing Islam as a foreign religion) 42 because there is a broad consensus that the prerequisites for access to better jobs and higher income (as well as higher labour productivity and overall societal wealth) are education and skills training. • Better schools, colleges and universities, more access to them for minorities, and higher educational achievement will translate into more employment and better earnings. In countries such as Germany and Switzerland, where much training is organized through apprenticeships supplied by employers, expanded access to these opportunities will deliver the same results. Germany actually has a particular advantage in that it has an intact industrial base (unlike the UK, for instance) and thus job opportunities for skilled immigrants who would not secure places at universities (and who often have no interest in them). • At the same time, this recipe for success is extraordinarily difficult because traning and education are expensive, and governments everywhere are mor likely to put funds into social programmes that benefit the old (health, pension) than into training and education for the young (the economist, 2014). In addition, success in education requires extraordinarily hard work, and much of the inititative will have to come from immigrants themselves. The school system can, of course, do much, through concentrated resources on local language training, closing bad schools in poor neighbourhoods and redistributing students to better schools. It can also provide diversity traning to teachers who might otherwise out of ignorance stream minority students away from academic programmes (there is anecdotal evidence of this sort of dynamic in Germany). 3. Keep the speech free but fair • Anti-semitism, islamophobia and an assault on free speech are all features of contemporary European politics. Many would dispute this formulation and see only one or two of them as real problems. Necessarily oversimplifying, the right downplays Islamophobia and emphasizes anti-Semitism and threats to free speech, whereas the left emphasizes Islamophobia while downplaying threats to free speech and, to a lesser degree, anti-semitism. • All three are, however, real and they require a common response: a robust assult on extremism. • In the case of Islamophobia and anti-semitism, both legal and rhetorical responses are required. In the former (and this is the easy part), current legal prohibitions on anti-Jewish and anti-muslim discrimination should be robustly applied (and should be seen to be applied). In the latter, those who argue that islam is a foreign import incompatible with European values – far-right politicians, commentators such as Bruce Bawer, Mark Steyn and Christopher Cardwell – must be challenged vigorously. • The arguments are known and well rehersed, but they need to be repeated: acts of violence are committed by a tiny minority, and we are too inclined in the case of Muslims to associate such violence with the faith itself or with all its believers. • By contrast, when Jews or Christians commit acts of violence, we instinctively regard them as lunatics who are unrepresentative of their faith. Few people 45 believe that Christian fundamentalists shouting “god hates fags” or orthodox Jews attacking Palestinian property and hacking down olive trees speack, respecitely, for Christianity and Juadism. • When the French socialist government published a bill allowing gay marriage, the most vociferous protests came not from French muslims but from roma catholics, who poured into paris from the provinces to show, often with homophobic placards, their opposition. Few thought that htey spoke for all Christians, or even all Catholics. • Finally, following what we know from contact theory, the more inter-faith interactions (including, importantly, interactions between believers and non- believers) that can be fostered, the less prejudice we will see. • Against this background, moves by governments in Europe to ban the hijab in schools and the burka on the street, though perhaps grounded in concerns for gender equality with which one can sympathize, have been unhelpful and have further encouraged the view that islam is unwelcome in Europe. • In the aftermath of (and the lead up to) the January 2015 Paris attacks, as in the aftermath of the Rushdie and Danish cartoon affairs, substantial sections of opinion, Islamic and non-Islamic, have held that the publications of caricatures of the Islamic Prophet Muhammed go beyond the viable limits of free speech. This is simply absurd. • The right to mock (verspotten) religion, any religion, is so within the bounds of acceptable speech that the fact that there is a debate at all is mystifying. Religious requirements apply to followers of the religion and to no one else; to suggest otherwise is to imply that non-Muslims should internalize Islamic rules. • This principle has, however, to apply to everyone: there cannot be restrictions on free speech for one religion and an open season in matters of free speech for another. • For this reason, blasphemy laws in European countries, including Germany, the UK, Italy, are an affront to the principle and understandably encourage the view among some Muslims that Europeans operate a double standard in matters of free speech. In this regard, the arrest by French authorities of a virulently anti-semitic comedian, Dieudonné M’bala M’bala, was unwise (unklug), however offensive his views. • And what of offence? To be sure, publishing crude caricatures of the Prophet is disrespectful and offensive. Respect, however, is a matter of choice and cannot be mandated: no one has to respect anyone, and many believe that all religions are unworthy of respect. Pious Muslims certainly do not respect philanderers (Schürzenjäger), men who enjoy the delights of gay saunas, or women who like a drink. • The last point raises a further issue. Islam is a large and highly diverse religion; prohibitions of portrayals of the Prophet apply fully only to Sunni and not to Shiite Muslims, and the most religions among (zwischen) them will take the requirement most seriously. All things being equal, the most conservative and orthodox members of any religion are those who will adopt the most literal and uncompromising (and often selective) views of religious texts: compare 46 attitudes towards the Bible among Church of England followers in north London with Pentecostals in the southern US. • A deferential (ehrbietig) approach to religious conservatism is also deeply condescending, above all to moderat Muslims, as it suggests that they are somehow not quite as good as the rest of us and need the sort of “pass” that the liberal academy was unprepared, rightly so, to accord Christian fundamentalists who demanded revisions to the American education curriculum in the 1980s. • No less a thinker than the political philosopher Charles Taylor has confidently stated that Muslims cannot understand the distinction between religion and politics. It is hard to imagine a more patronizing statement. • The 13 November 2015 jihadist attacks on central Paris served to confirm the arguments about free speech developed in this article. The debate and indiscriminate slaughter (Schlachtung) of innocent French civilians, including Muslims, makes it clear that these murders have nothing to do with an absence of respect; the have nothing to do with speech, however offensive or not it may be. They are driven rather by an ideology that understands nothing but death, destruction, fear (Angst) and theoretical slavery. • Once we recognize this fact, we will be one step closer to grasping (fassen, greifen) the nature of challenge to liberal democracy. • To resume: one person doesn’t represent the whole religion, we have to treat every religion equally • But: no protection of hate speech! The liberal-pluralist discursive strategy • The pluralist discourse of emphasizes the moral responsibility of the national polity to include other religious traditions. This discourse is strongly committed to participation and gives high importance to the topoi of culture and history. In the sample (Muster, Beispiel) it is possible to identify a vocabulary evoking Europe’s tradition of tolerance and reason and the related principles of co-existence between different religious groups. The topos of history aims linguistically to create a context of continuity throughout the history of Europe. Here, continuity refers to linking history to a common political present and future by establishing chronological and causal relations with the past The nationalistic discursive strategy • This discourse is characterized by a lexicon that invokes an in-group status of superiority that can be considered as archetypal forms of “self-glorification” and “self- presentation”. National identification aims at preserving a continuity principle of accepted and internalized (verinnerlichen) social representations of the ethno-national in-group’s worldview. As a consequence, dissimilarity or variation is perceived as undesirable. • Nikolas Sarkozy’s editorial, published on 8 December 2015 in both Le Monde and The Guardian (two progressive newspapers): • In this editorial the former French president defends the swiss vote (prohibition of burka and so on) because it does not discriminate against the freedoms of 47 Asylum and refuge (basic concepts) • UNHCR = united nations high commission of refugees • The concept of asylum is deeply rooted in the traditions and narratives of Western states. • Whilst many states have adopted a variety of measures to make it more difficult to file an asylum claim in the last two decades, none have suggested abandoning asylum altogether or even narrowing the criteria substantially. • Courts have stretched their interpretations of the term “persecution” in order to encompass domestic violence, female genital mutilation. • Trational focus of asylum was on protecting people subjected to persecution carried out by agents of the state, and now it includes harms inflicted by non-state actors. • Asylum was understood to protect those who have a well-founded fear of being persecuted by state agents for reasons of race, religion, nationality or membership to a particular social group or political opinion. • The convention (UN, 1951, relating to the status of refugees) and its 1976 protocol, which form the basis of most of the existing asylum regimes in the world, reflect the situation at the time the convention was drafted, when those who sought refuge typically fled from totalitarian states. • Many who claim asylum today are fleeing violence committed by guerrilla armies, criminal gangs, family members and clans, as well as government security forces (also state breakdown, famine, poverty, and natural disasters). • These realities have put pressure on the traditional focus of asylum and have led to an increasing need to consider asylum in humanitarian terms • In 1994, the UNHCR explicitly endorsed the protection of human security as its guiding principle, an important shift as: “it is no longer the quality of refugee that entitles a person to protection; it is the need for protection that entitles a person to a treatment as a refugee.” The 1951 united nations convention relating to the status of refugees • First and foremost, the convention gives expression to the principle of non- refoulement, according to which no person may be forcibly returned to a territory where his life or freedom may be threatened on account of his or her race, religion, nationality, membership of a particular social group or political opinion (art. 33.1) • It also prohibits the expulsion of a refugee otherwise than for reasons of national security and public order (art. 32) • Refugees, because of their special situations, should not be exposed to measures of expulsion for the same reasons as those of an “ordinary alien”. • Refugees entering the country in an irregular manner in order to request asylum must not be penalised for their irregular entry provided that they announce their presence without delay to the national authorities (art. 31): this provision reflects the idea that a refugee fleeing from persecution may not always be in a position to enter in a regular manner the country in which he or she wishes to request asylum • These provisions demonstrate the basic significance and the continuing relevance of the 1951 Convention as an international rights instrument for the protection of refugees. Many of the provisions of the Convention are aimed also to facilitating the refugee’s integration in the country of asylum, geared to the solution of local integration • “conceptual” definition of the term “refugee” in the convention: A person, who, as a result of events occurring before 1 January 1951, is outside of his or her former home country because of a well founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. • The notion of “persecution” did not figure in the pre-World war II international instruments. It was introduced by the special Committee on Refugees and Stateless persons in 1946: its purpose was to define “valid objections” which would entitle a refugee to refuse return to his or her country of origin and thus to become the concern of the Organization (International Refugee Organization). • The adoption of the conceptual definition of the “refugee” in the convention was regarded as a major step forward, compared with the definitions by categories in the pre-war refugee instruments. • However, today’s refugees are very different from the refugees of 1951. They do not have a “well-founded fear of persecution” but have left their country for a variety of other reasons such as civil war, internal strife, foreign aggression and generalized violence or disregard of human rights. • While these are very serious phenomena, they are somehow or other not “persecution”, but something different calling for a nwe approach to the entire refugee concept. • This view has to be examined in the light of the historical development of international action on behalf of refugees, but first some general remarks are called for regarding the notion of “persecution” as it has come to be applied to individual asylum seekers and in group situations. • An individual who requests asylum as a refugee must establish that he or she is in a conflict situation vis-á-vis the authorities of the country of origin. That conflict situation is now reflected in the notion of “persecution”. After the adoption of the Convention, this notion came to be interpreted in the practice of States and of UNHCR: eminently liberal and humanitarian application of the refugee definition. • More recently, however, because of the known difficulties and pressures of current refugee problems, the definition has come to be more restrictively applied as regards both its substantive interpretation and the burden of proof (Beweispflicht) which the applicant for refugee status is required to discharge. • We can say that nowadays the definition, through its restrictive interpretation, is actually being used as an instrument of restrictive asylum policies. • According to the definitions in the convention and the UNHCR statute, a refugee is “a person who...” this has led some to consider that these definitions are essentially applicable to individuals and are of little relevance for today’s refugee problems, which are problems of refugee groups. The international community, however, has dealt with refugee problems on a group basis. • This is necessarily so because in the case of group determination, we are confronted by a mass of people who flee the consequences of political events in which they have not necessarily participated. In the case of individual determination, a person claims to have been individually the victim of, or threatened personally by, persecution. It therefore follows that a prima facie group determination of refugee character does not mean that each and every member of the group would satisfy the test of well-founded fear of persecution, if his or her case were individually determined. Group determination by its nature concentrates on the objective situation in the country of origin, and not on the type of conflict situation in which individual refugees may find themselves, vis-á-vis the authorities of that country. • The UNHCR was called upon to a very early stage to concern himself with a series of problems involving refugee groups, which he was aple to do very effectively by applying broad humanitarian criteria. • The “individual” definition in the UNHCR statute did not prove an obstacle to such a broadly based group approach when this proved necessary. These new refugee situations were of a special kind calling for a special approach • Fistly, the individual determination of refugee status was impracticable in view of large numbers involved. • Secondly, an implicit use of the “persecution concept” was inappropriate due to sensitivities of governments. • Finally, as regards to the solutions to be envisaged, the approach was more flexible than under assistance programmes designed for camp clearance and the local integration or resettlement of the residual caseload of European refugees. • In order to deal with these new refugee situations the High Commissioner, with the approval of the General Assembly developed and applied what is come to be called the “good offices” procedure. • Thereafter, in the nwe refugee situations in Africa, the “good offices concept” was used to enable the High Commissioner to assist refugee groups under his regular programme. • In this case, the “good offices” procedure was based on the prima facie refugee character of the groups assisted, under the statutory definition . • In making this prima facie determination of refugee character, the HC used broad criteria based on the objective situation existing in the country of origin. The global result of the “good offices” procedure was explained by the high Commissioner as follows in 1965: “the refugees who benefit from “good offices” are persons who are obliged by political events to leave their country and may reasonably fear (Angst) for their security if they were forced to return there”. • In the light of these clarifications by the high Commissioner, the resolutions adopted after 1965 on the HC’s Annual Report no longer spoke of “refugees within the HC’s mandate and those for whom he extends his good offices”, but simply “groups of refugees of the HC’s concern.” • On the basis of this resolution the HC participated in a series of special Operations on behalf of internally (intern) displaced persons. The rationale for such action was that internally displaced persons found themselves in a situation analogous to that of refugees and should not be excluded form international assistance merely because of the fact that they had not corssed an international frontier. The Dublin Regulation 604/2013 • Content of Dublin: contry responsible for asylum application • Every single asylum application lodged within EU territory needs to be examined – each EU country must be able to determine if and when it is responsible for handling an asylum claim. The objective of the Dublin Regulation is to ensure quick access to asylum procedures and the examination of an application on the merits by a single, clearly determined Member State. What is the Dublin Regulation? • The Dublin Regulation establishes the Member State responsible for the examination of the asylum application. The criteria for establishing responsibility run, in hierarchical order, from family considerations, to recent possession of visa or residence permit in a Member State, to whether the applicant has entered EU irregularly, or regularly. Key achievements (Erfolge) • The Dublin III entered into force in July 2013 and it contains sound procedures for the protection of asylum applicants and improves the system’s efficiency trough: • An early warning, preparedness and crisis management mechanism, geared to addressing the root dysfunctional causes of national asylum systems or problems stemming from particular pressures. • A series of provision on protection of applicants, such as compulsory personal interview, guarantees for minors (including a detailed description of the factors that should lay at the basis of assessing a child’s best interest) and extended possibilities of reunifying them with relatives. • The possibility for appeals to suspend the execution of the transfer for the period when the appeal is judged, together with the guarantee of the right for a person to remain on the territory pending the decision of a court on the suspension of the transfer pending the appeal. • An obligation to ensure legal assistance free of charge upon request • A single ground for detention in case of risk of absconding (verschwinden); strict limitation of the duration of detention. • The possibility for asylum seekers that could in some cases be considered irregular migrants and returned under the Return Directive, to be treated under the Dublin procedure – thus giving these persons more protection than the Return Directive. • An obligation to guarantee right to appeal against transfer decision. • More legal clarity of procedures between member states – e.g. exhaustive and clearer deadlines. The entire Dublin procedure cannot last longer than 11 months to take charge of a person, or 9 months to take him/her back (except for absconding or where the person is imprisoned). Towards a reform of the CEAS: Dublin IV Regulation Proposal • The large-scale, uncontrolled arrival of migrants and asylum seekers has put a strain not only on many Member States’ asylum systems, but also on the Common European Asylum System as a whole. The volume and concentration of arrivals has exposed in particular the weaknesses of the Dublin System, which establishes the Member State responsible for examining an asylum application based primarily on the first point of irregular entry. • For these reasons, the Commission is proposing to revise and replace the current asylum instruments to better manage migration flows and offer adequate protection to those in need, in line with the approach set out in the European Agenda for Migration. • In May 2016, as part of its proposed reform of the Common European Asylum System, the Commission presented a draft proposal to make the Dublin System more transparent and enhace (verbessern) its effectiveness, while providing a mechanism to deal with situations of disproportionate pressure on Member States’ asylum system, the Dublin IV Regulation • The commission proposal aims to: • Enhace the system’s capacity to determine a sigle MS responsible for examining the application for international protection by removing the cessation of responsibility clauses and shortening time limits for take-charge requests and transfers • Ensure fair sharing of responsibility between MS by complementing the current system with a corrective allocation mechanism in cases of disproportionate pressure • Discourage abuses and prevent secondary movements by requiring proportionate procedural and material consequences in case of non-compliance • Protect asylum seekers’ best interests: with stronger guarantees for unaccompanied minors and a balances extension of the definition of family members • A fairness mechanism based on solidarity which includes a corrective allocation (Vergabe, Zuteilung) mechanism and which takes into account resettlement efforts made by a member state to resettle those in need of international protection direct from a third country. This will acknowledge the importance of efforts to implement legal and safe pathways to Europe. • This new system would automatically establish when a country is handling a disproportionate number of asylum applications. It would do so by reference to a country’s size and wealth. If one country receives disproportionate numbers above and beyond that reference (over 150% of the reference number), all further new applicants in that country would (regardless of nationality) be relocated, after an admissibility verification of their application, across the EU until the number of applications is back below that level. • A member state would also have the option to temporarily not take part in the reallocation. In that case, it would have to make a solidarity contribution of 250.000€ for each applicant for whom it would otherwise have been responsible under the fairness mechanism, to the member state that is reallocated the person instead. Dublin III: application, procedure • The Dublin III Regulation provides a mechanism for determining which country is responsible for examining an application for international protection that has been lodged in one of the member staes by a third country national or a stateless person. The Dublin III Regulation applies to the 28 EU member states, Iceland, Norway, Liechtenstein and Switzerland. In this document, they are referred to as the Dublin countries. • When you make your application for international protection you will have an initial interview with an international protection officer to establish basic information and advise you of your rights. Your case may also be examined under the Dubin III Regulation to see whether it should be transferred to another Dublin country. It is open to you to make written representations, in this regard, to the international protection office – see “where to apply” below • The international protection officer shall take into consideration all relevant matters known to them, including any representations made by you or on your behalf, when deciding whether your application will be transferred. You will then be issued with a written determination of the outcome. Consideration of your application under the Dubin III Regulation • In some cases, applicants may be required to participate in a separate interview relating to an application under the Dublin III Regulation. However, more usually, such information will be gathered (sammeln, erfassen) during the course of the initial interview or as a result of fingerprint evidence. • If, at any stage during the investigation of your application, it appears that your application should be dealt within another Dublin county, it may be dealt with in accordance with the Regulation. • Your case may be one where the country you are in requests another Dublin country to take charge of your application. Examples of this are where another country has issed you with a visa or work permit, or if you irregularly crossed the frontier of another Dublin country before applying for international protection. • Alternatively, the country you are in may request that another Dublin country take back your application because, for example, you have made an international protection claim in another Dublin country and that claim has not yet been finalised; or you withdrew your international protection claim in that country; or your application for international protection was rejected and you are in the country without permission. a summary of the different time limits to take charge (Führung übernehmen) and take back cases is set out as follow: • Take charge: • A request to another Dublin country to take charge of your application (to accept responsibility for it) must be made within 3 months from the date of your application. The requested country must give a decision no later than 2 months from the date on which it received the request. • If the country you are currently in does not make the request within the period of 3 months, responsibility for your application lies with it. • The country you are currently in may ask for an urgent reply from the requested country if you were refused leave to enter or to remain. Also, that country can make an urgent request if you have been arrested for unlawful stay; or after the service or execution of a removal order; and/ or where you are held in detention. The request shall state the reasons warranting the urgent Human rights in Europe The European Union • Faced with significant strategic challenges, including human rights, the UK vote to leave the EU, attacks by violent extremists, and rising support for populist anti- immigration parties, EU governments and institutions responded in 2016 in ways that often undercut or set aside core values and rights protections rather than working consistently together to defend them. Migration and Asylum • The EU as a whole failed to show leadership and solidarity in the face of the largest global displacement crisis since WWII. Much of the debate about policy responses focused on concerns about the impact on security and cultural identity and growing support for populist parties with xenophobic (fremdenfeindlich) platforms. Eu policies focused primarily on preventing arrivals and outsourcing responsibility for asylum seekers and refugees to other regions. • Border closures along the Balkan route and a March agreement with Turkey contributed to a significant decline in arrivals by sea to Greek islands in the Aegean Sea, while boat migration form North Africa to Italy kept place with previous years. In the first 10 months of the year, almost 328.000 had crossed the sea to reach European shores (Ufer, Küste), compared to 736.646 during the same period in 2015, according to the United Nations Refugee Agency. • 58% of those arring by sea came from the world’s top 10 refugee-producing countries, including Syria, Afghanistan, Iraq and Eritrea, according to the UNHCR. Nigerians, Pakistanis, Gambians, Ivorians and Guineas together made up 21 % of the new arrivals. Nearly 1/3 were children, and the proportion of unaccompanied children rose over previous years. • Despite (trotz) increased capacity for search and rescue (retten) operations in the Mediterranean, and numerous nongovernmental organizations (NGO) conducting rescue missions, by mid-November 4.271 had died or gone missing in sea, making 2016 the deadliest year on record. The EU began training Libyan coast guard officers amid persistent concerns about violence and degrading conditions in Libyan detention centers and the absence of a functioning asylum system. • Border clusres on the Balkans route and heightened border controls by Austria, France and Switzerland left asylum seekers and migrants stuck in Greece and Italy. There were violent pushbacks at the Bulgaria-Turkey and the Macedonia- Greece borders. Austria, Denmark, Hungary, Sweden and Germany were among (unter) EU states adopting more restrictive asylum laws. • There was little appetite among EU governments to share responsibility for asylum seekers more equitably across the union. By mid-November, only 7.224 asylum seekers had been relocated from Greece and Italy to other EU countries under a EU emergency plan, according to the European Commission. The Commission proposed a permanent relocation mechanism to help countries experiencing disproportionate numbers, but it would allow countries to pay to avoid accepting relocations, and retain the Dublin regulation that places primary responsibility for processing asylum seekers on the first EU country of entry. • A new European Border and Coast Guard began operating in October 2015 (?). Replacing the external border agency Frontex, the entity has more autonomy from member states and a reinforced role in returns, as well as a complaints mechanism. It does not have an explicit search and rescue mandate. • In March 2016, the EU signed a problematic deal with Turkey to send back asylum seekers reaching Greece by sea in exchange for billions of euros in aid and a pledge (Pfand, Versprechen) to resettle (umsiedeln) one Syrian for every Syrian returned. In June, the Commission announced a new “partnership framework on migration” conditioning aid on migration cooperation, drawing criticism from development NGOs, and began implementing migration control projects with countries including Sudan and Eritrea. • EU governments made slow progress on resettlements. By July 2016, only 8.268 refugees had been brought to EU states under a July 2015 EU plan to resettle over 22.000 within two years, although some EU states resetteled additional numbers through bilateral arrangements. Ten EU states failed to resettle a single person. Poor progress lowered expectations for implementation of the permanent EU Resettlement Framework proposed by the Commission. The proposal would make immigration cooperation an element in the decision whether to resettle refugees out of a host country. • The European Commission issued a raft of proposals in July to reform the EU’s dysfunctional asylum system. They include stronger safeguards for children and better access to a lawyer, but would punish asylum seekers for moving from one EU country to another and make it easier to summarily reject claims and revoke refugee status. The council and parliament had yet to approve them at time of writing. Discrimination and Intolerance • The ongoing human rights and attacks by armed extremists in Belgium, France and Germany reinforced xenophobic, islamophobic and anti-immigrant sentiment, manifest in attacks on Muslims, migrants, and those perceived as foreigners and support for populist anti-immigration parties in many EU states. • Anti-semitism, including hate crimes, remained a serious concern in some EU states including the UK and France. In an April resolution (Beschluss) on combating anti-semitism in Europe, the Parliamentary Assembly of the Council of Europe noted that members of the Jewish community regularly experience insults and physical violence across Europe. • In September, United Nations High Commissioner for Human Rights Zeid Ra’ad al- Hussein warned leaders of populist parties in Europe about the corrosive effect on societies of their instrumentalization of bigotry (Fanatismus, Engstirnigkeit) and xenophobia for political ends. • In its May annual report, the Council of Europe’s Commission against Racism and Intolerance noted an anti-immigrant and Islamophobia trend, and emphasized (betonen) the need to combat racist violence. The Council of Europe’s Commissioner for Human Rights Nils Muzinieks urged European countries to prioritize migrant integration, including by ensuring effective protection from discrimination. Terrorism and Counterterrorism • Attacks in Belgium, France and Germany, many claimed by the Islamic State (ISIS), together killed scores of people and injured hundreds more. The attacks prompted or reinforced measures and proposals in EU states to expand police and surveillance powers, strengthen intelligence cooperation (Informationsaustausch), and revoke dual citizenship of those found to have committed terrorist acts. • In Belgium, which suffered coordinated attacks on Brussels airport and a metro station on March 22, 2016, the government proposed a raft of new counterterrorism laws to expand powers of surveillance and detention. • In March 2016, EU justice and Home Affairs ministers agreed a draft directive to strengthen the EU’s legal framework for preventing terrorist attacks, in particular by criminalizing preparatory acts, such as training and travel abroad for terrorist purposes. Human rights groups expressed concerns about insufficient safeguards and precision in the draft directive. The draft directive remained under consideration at time of writing. France • France suffered three deadly attacks claimed by ISIS in June and July, including an attack with a truck in Nice that killed 86 people and injured hundreds. The state of emergency declared by President Francois Hollande following the November 2015 attacks in Paris and Saint-Denis was renewed by Parliament in February and May 2016. • On July 21, a few days after the Nice attacks, Parliament adopted a new law extending the state of emergency by another six months, and expanding already wide police powers of search, seizure (Beschlagnahme) and detention. On December 15, the state of emergency was renewed for the fifth time, for another seven months, until July 2017. • The July law toughens several terrorism-related provisions in France’s law and criminal code. It reinstates warrantless (ohne Genehmigung) seizures of computer and cellphone data that France’s highest legal authority earlier in the year had stuck down as unconstitutional, adding safeguards that still fall short of proper judicial oversight. • The law came only weeks after an already broad counterterrorism law adopted by Parliament in June 2016, which the French National Consultative Commission of Human Rights (CNCDH) had criticized for curbing (zügeln) freedoms. • Between November 2015 and July 2016, under the emergency law, police carried out nearly 4.000 warrantless raids (Razzia) and placed 400 people under house arrest, yet those actions led to only six terrorism-related criminal investigations. Those measures targeted (gerichtet auf) mostly Muslims and led to abuses of the rights to liberty, privacy, freedom of movement and non-discrimination. • A French Commission of inquiry (Anfrage, Untersuchung) into the Paris attacks concluded on July 5 that the state of emergency had “limited impact” on improving security. The panel described important failures in analyzing intelligence that could have helped prevent the attacks. In a May review of France, the UN Committee against Torture expressed concern about excessive use of foce by police when • New asylum applications and rejection rates increased compared to 2015, as increased border controls by neighboring countries prevented onward movement. Most asylum seekers lived in temporary emergency facilities of varying standards. Concerns persisted about use of force for fingerprinting as well as overcrowding and lack of protection for unaccompanied children at hotspots. At time of writing, only 1.570 asylum seekers had been relocated to other EU countries out of the 39.600 initial target (Ziel) under the EU plan. • Italy intensified negotiations with countries such as Sudan, Gambia and Libya on migration control, including to facilitate deportations. In August, after a memorandum of understanding with Sudan, Italy deported 48 Sudanese, it claimed had not sought to apply for asylum amid concerns about the procedure. • A bill to make torture a criminal offence in domestic law, approved by the lower house of parliament in 2015, languished in the Senate at time of writing. • In February, the ECtHR ordered Italy to compensate an Egyptian cleric known as Abu Omar for complicity with his 2003 rendition and for failing to ensure effective punishment for those responsible. At time of writing, one of the 22 CIA agents convicted in absentia by Italian courts in the case was fighting extradition from Portugal. At issue is Italy’s refusal to grant her a retrial. • Italy continued to expel (vertreiben) terrorism suspects (Terrorverdächtige) under a procedure that explicitly denied the right to an in-country appeal. Italy expelled 47 individuals, many of them to Tunisia and Morocco, in the first eight months of 2016. • In April, the Council of Europe’s Social Rights Committee said that the fact that 7 out of 10 doctors in Italy are “conscientious objectors”, meaning that they refuse to provide abortion services in some or all circumstances, created serious difficulties for women accessing safe and legal abortion. →if the law allows abortion, the doctors have to give women the possibility to have a a abortion (otherwise they go in other countries and have illegal abortions or the doctors don’t act lege artis) • As of May, same-sex couples may have their relationships legally recognized as civil union members , through they do not have the right to adopt. Netherlands • In February, the government expanded the list of safe third countries for asylum seekers. Nationals from countries deemed safe are presumed not to need international protection and are subject to accerlerated (beschleunigt) procedures, raising concerns about the quality of individual examination of asylum claims. In September 2016, the country’s highest administrative court affirmed the legality of Albania’s designation as a safe country of origin. • The Duch government continued to offer support that is limited in duration and scope to rejected asylum seekers, with assistance contingent on their cooperation with removal from the country. In February, several UN special rapporteurs urged (bitten, drängen) the Dutch government to provide emergency assistance to rejected asylum seekers. • Refugee rights groups criticized Dutch authorities over longer waits for asylum determination and family reunification procedures. • At the start of 2016, NGOs reported threats and discrimination against LGBT (lesbian, gay, bisexual, transgender) asylum seekers at asylum facilities, and a Dutch independent monitoring body, the Dutch Board for Protection of Human Rights, found in February that LGBT asylum seekers at a large facility face discrimination. • In May, the Netherlands enacted a law allowing authorities to strip Dutch citizenship from dual nationals as young as 16 (bereits im Alter von 16 Jahren) if they determine that they have joined of fought abroad with a terrorist group and pose an “immediate threat” to national security. No court conviction is required. Those whose Dutch citizenship is revoked have only four weeks to appeal. • In January, the Netherlands ratified the UN Convention on the Rights of Persons with Disabilities. Poland • Poland faced international criticism over attempts by the newly elected parliament led by the ruling law and justice Party to undermine (untergraben) the independence of the Constitutional Tribunal, the country’s highest court. • In November 2015, the parliament cancelled the appointments of all five Constitutional Tribunal judges elected under the previous government, and passed a law in December that undermined the tribunal’s functioning. When the tribunal ruled in March 2016 that the changes were unconstitucional, the government refused to publish the ruling or to change the law. • In July, the parliament adopted a revised act on the Constitutional Tribunal, Polish NGOs expressed concern the new act would paralyze the court and affect its independence. The Constitutional Tribunal ruled that part of the new law was unconstitutional. At time of writing, the Law and Justice Party was reportedly preparing yet another draft revision of the act on the constitutional Tribunal. • In March, the Venice Commission, the Council of Europe’s advisory body on constitutional issues, concluded that the December 2015 amendments endanger the rule of law and called on the government to implement the constitucional Court’s judgement. In October, the Venice Commission criticized the July revised act as limiting the tribunal’s effectiveness and independence. • The crisis led the European Commission in January to activate for the first time its rule of law mechanism – created in 2014 to address rights-threatening measures by EU member states. In July, the European Commission gave the government three months to publish the Constitutional Court’s rulings and implement the Venice Commission’s recommendations. At time of writing it had yet to announce any follow- up action. • In January, the Parliament adopted amendments to the Act on the Police that raised concerns on the protection of privacy online. In June, President Andrzej Duda signed into law a new Anti-Terrorist Act that introduces a vaguely defined “event of a terrorist nature”, extends investigative powers specifically on foreigners, regulates access to online content and extends arrest and search powers. • In October, Parliament withdrew a contentious proposition supported by Polish Prime Minister Beata Szydto to impose an almost total ban to abortion, following mass protests. Amid (inmitten) continued protests, the Law and Justice Party pressed ahead with efforts to further limit what is already one of the most restrictive abortion laws in Europe. • There continues to be little accountability (Verantwortlichkeit, Rechenschaftspflicht) for hate crimes based on sexual orientation. Anti-migrant hate speech and violence was a growing concern. Polish NGOs accused authorities of preventing asylum seekers at the border with Belarus from entering Polish territory to seek protection. • There was no sign of progess in the Krakow appellate prosecutor’s longstanding criminal investigation into a secret CIA detention and interrogation program on Polish territory. Spain • A policy of summary returns and reinforced controls at Spain’s land border with Morocco in its North Africa enclaves appeared to result in migrants increasingly trying to reach Ceuta and Melilla by boat or swimming. The number of deaths along that route tripled to 45 in the first six months of 2016 compared to 2015. • There were several group attempts to scale the fences surrounding the enclaves, followed by summary returns, though fewer than in previous years. In July, the Council of Europe Human Rights Commissioner Muisnieks urged Spain to adopt border procedures to prevent refoulement and collective expulsions. An ECtHR challenge to summary returns from Melilla in 2014 was pending at time of writing. • As of mid-November, Spain had relocated only 398 asylum seekers of the 9.323 it had committed to taking from Greece and Italy. While it pledged to resettle 1.449 refugees from other regions, at time of writing it had resettled only 279. • In April, the European Commission took the first step towards legal actions against Spain for failure to protect comsumers against unfair mortgage (Pfand, Hypothek) terms. In July, the EU court of Justice advocate general recommended the court uphold a 2013 Spanish Supreme Court judgement preventing consumers from suing (klagend) banks for interest paid on mortgages under rules subsequently declared unlawful; the EU court had yet to rule at time of writing. • In June, Spain’s Constitutional Court suspended a Catalan law with protections for those facing eviction (Vertreibung, Räumung) from their homes, including for failure to mortgages, pending examination of an appeal by the central government. • In May, the ECtHR ruled Spain had failed adequately to investigate allegations of torture of a man suspected of affiliation with the armed Basque separatist group ETA, while he was held and interrogated in incommunicado detention. • At least one journalist was fined (bestraft), in April, for publishing photographs of a police operation under a controversial 2015 public security law. There were several hig-profile cases of charges against musicians, puppeteers and activists for glorification of terrorism, including on social media, under strengthened provisions in the criminal code. United Kingdom • The referendum vote in June to leave the EU sent political shockwaves through the country, creating uncertainty about future constitutional arrangements and