Nationality and Citizenship: Sociological and Legal Dimensions in Spain and Europe, Apuntes de Derecho de Nacionalidad

¡Descarga Nationality and Citizenship: Sociological and Legal Dimensions in Spain and Europe y más Apuntes en PDF de Derecho de Nacionalidad solo en Docsity! NATIONALITY AND IMMIGRATION (Fransico Gomez > Fransisco.A.Gomez@uv.es >3A01 on third floor) 9/9/2019 • Introduction • Systems are not that inclusive and can create exclusion • Spain has receive less immigrants than other EU countries: why is this? What are the practical problems? • What’s the idea of the EU citizenship? Do you feel European? What do you understand under migration? The idea of nationality doesn’t have to overrule other things (group of people who identify themselves as a part of a nationality ■ In Spain: the use of the Spanish flags ■ Latin americans families: kids who are born and raised in Spain, but aren’t Spanish (because their parents aren’t) <> when you born in the US, you are automatically American ■ The sense of belonging to a particular group > legal fiction • Law is a fiction: its something we create that allows us to live in a society > made by human so it has to be political 10/9/2019 • Two main dimensions of nationality • 1) Sociological dimension: factual nationality ■ This means the existence of a group of people that are linked by a serie of criteria > relationship between a person and state, language and symbols, culture (in a broad sense), diversity, administrative requirement, political system, ethnicity (but not necessary because we have much more diversity and that will continue growing), geography, history, common mentality as members of the same community • OPM: group of people who live in the same place who share a culture > so that’s not linked by law (administrative requirement and relationship between person and state are legal facts) • A nation is a philosophical State > State is more like a legal term • Catalonia: they consider them as a different nation than the state Spain • UK: England, Scotland, Wales and northern Ireland: one state but four nations • BUT sometimes the state and nation can be one • When you talk about state, you mean a second nationality • 2) Legal dimension: related to legal and political concepts that gives name the link between a person and a state (relationship) ■ This relationship is the legal meaning of nationality ■ One person is identified as a member of the state > what are the conditions? • You go the US and you want to stay there: you need to apply for the nationality (there are conditions) • Depends from country to country ■ Legal definition has a double nature: • Public dimension > NATIONALITY = LEGAL STATUTE: gives you rights/ duties • Relation between state – population > determines who’s going to be a national/ determines the rights and duties (has a legal nature) • What happens when you don’t have a nationality? ■ Means you have no any relationship with a state: you cant travel/ you cant work legally ■ = stateless person (because lack of nationality) ■ BUT when your parents are stateless, the country where you were born needs to give you nationality because you have the right to have nationality > this gives you also protection of the state • Conclusion: nationality means everything in a certain way (we live in a globalized world: almost everyone’s travelling) + concept of nationality is important in the legal way • Private dimension • ! So think about the two dimensions when you speak about nationality • ! Some states use citizenship to talk about the legal aspect of nationality • Sources: requirements different from country to country • International rules on human rights: art 15 UDHR (right of having a nationality) • Countries have laws that gives details about nationality ■ SPAIN: art 11 Spanish civil code (like how you can loose your nationality, …) make a social contract that says what it is to be European • Relationship between eu citizenship and nationality • When you obtain eu citizenship > to what extent you can enjoy it • Art 20 TFEU: citizenship is additional and you cant replace it with your nationality ■ Citizenship has not that typical link between the person and the EU as the one we find in nationality • Charter fundamental rights of the EU > important instrument > art 45 ■ If you live in EU, you automatically can work there > you can go wherever you want • Schengenspace (Schengenruimte) • If you have problems with your passport (stolen/ gone): you can go to any embassy because you are an EU citizen • EU citizenship has less value than your own nationality ■ TFEU states that the eu citizenship is additional ■ You have certain rights as eu citizen SPANISH NATIONALITY • How to acquire the Spanish nationality? Ius soli/ ius sanguinis? • Two criteria ■ Ius sanguinis: is the main source of nationality • Gained relevance since the French revolution > to maintain the link between the person and the country (so linked to emigration) • Spanish people worked over whole the world, but the state wanted to have a link: so the Spanish people who emigrated from spain would be still Spanish > also if their had kids in for ex Mexico, the kids will be Spanish (because their parents are spanish) ■ Ius soli: if you were born there, you have the nationality of the place • Was especially important in medieval times • Countries who receive immigration, use ius soli because you don’t want to that your country only has foreigners • So the second generation will receive the nationality of the country (for ex: Turkish people going to Germany > they aren’t german because no german blood or born in Germany, but their children will be born in Germany so the receive the german nationality = second generation) • Because what do you have with a country full of foreigners? • USA has the combination: you need or to be born or your parents are American ■ Spain: ius sanguinis • If a foreigner wants to marry in Spain, then you need to apply the rules of the nationality and not the spanish rules (because a foreigner isn’t Spanish) • Whats impact of those criteria? Whats the influence of the human rights? • Protection of the country: when you have nationality you will be protected • Most minors who come to Europe: most of them have their documents and you know where they from > this is important for asylum or refugee status ■ But not all minors have this documentary: that’s why Spain has decided to grant the nationality to these minors • Different ways to require the Spanish nationality? • There is a difference between who was born Spanish and the ones who require the nationality later > it makes a distinction between ‘original’ Spanish and ‘not original’ > discriminatory 24/9/19 • Art 11 of the constitution? Taking account of international treaties and constitution • Is a safeguard that everyone has in Spain • Art 24 of the Civil code: states in which circumstances you can loose the nationality voluntary > it’s a closed list (narrow) • There aren’t more than stated in the law • You live outside Spain for more than 3 years (+ require nationality of another country > see Basile > you have three years to choose (if you have the nationality of another country and you live there for more than 3 years, then you can loose the Spanish nationality) > ONLY for not ‘original’ Spanish people ■ Catalonian problem: if catalonia leaves spain, then they need to leave the EU > is an argument why people want to remain part of spain (same thing with Scotland and the UK) • Processing of joining the EU > you will loose the EU citizenship • Lot of ignorance of this subject • If you want to require the Spanish nationality: system gives you time to make a statement • Is only when you require the nationality, not when you are an ‘original’ • Not using false ways to require the nationality: there are certain provisions • For ex: using false documents, fraud in marriage > BUT: is difficult to prove this (for ex: when two people marry each other but they don’t speak the same language) • You need to register this nationality > registry aspect is always important • Art 24: acquisition of the nationality by Latin America and Philippines > no treaty with Brazil/ Puerto Rico > Supreme court allowed this for Brazilian as well: so you wont loose the Spanish nationality • This provision: someone who is born in foreign country can have his nationality > case of double nationality: it’s a ‘factual’ nationality, not lawful • Passport: way to identify yourself in a foreign country • Loosing your nationality is not that simple: law reflects that • It is seen as a punishment > most of the countries did not allow to loose their nationality for their nationality ■ In spain they make a difference between original and derivative • System of nationality is autonomous: in some circumstances you van have two or three nationalities • Facts + legal consequence No class 30/9 1/10/19 • Art 9.1 CC: personal statute is being determined by the nationality • Double nationality: can create some problems > even if a country allows this: if you have Spanish and Argentinian nationality: which law you apply when you want to marry? • For ex: two persons (same sex) want to marry in Spain: X is from Poland and Y is from Spain. Principle: you can marry in Spain, but according to art 9.1 CC your capacity will be determined by your nationality ■ Personal law is the law of the nationality ■ So you need to take a look at polish law for the polish person and to Spanish law for the Spanish person • BUT in Poland people of the same sex cant marry • Principle of NON discrimination, but we are going to apply the Spanish law (we apply the most favourable law) • Capacity to get married is not something that has to do with gender > capacity is not determined whether you or a man or a woman