Version classiqueVersion mobile
OpenEdition Books

Le uguaglianze: diritti, risorse, sfide per il futuro

 | 
Leda Rita Corrado

Migrants without rights: the limited citizenship of migrants in illegality and their access to Law and Justice in the European Union and Portugal

João Pedroso, Maria João Guia, Patrícia Branco et Paula Casaleiro

Texte intégral

1. Introduction

1The non-national population resident in Portugal registered a steady increase since the mid-twentieth century (1980, n=50.750 residents) to the early twenty-first century (2000, n=207.58756). At the end of the first decade of this century, there is a decrease of the non-national population resident in Portugal (2010, n=445.262). These movements of immigrants changed as did the nationalities of origin: untill the 21th century, immigrants were nationals from Angola, Cape Verde, Guinea-Bissau, and Brazil; at the beginning of the 21th century, Portugal started to receive non-nationals from Eastern European countries.

  • 1 Canotilho, Joaquim (2007) “Ter cidadania/ser cidadão. Aproximação à historicidade da implantação ci (...)
  • 2 Baganha, M. I., Marques, J. C., & Fonseca, G. M. (2000) Is an ethclass emerging in Europe? The Port (...)
  • 3 Capucha, Luís (1998) Pobreza, Exclusão Social e Marginalidade. In Viegas, J.M., & Costa, A. F. (org (...)

2The Constitution of the Portuguese Republic enshrines the principles of universality and of equality, stipulating that all citizens enjoy the rights, possess the same social dignity and are equal before the law, as well as a general principle of equivalence between national and non-nationals, including non-nationals in illegal / irregular situations, fulfilling one of the principles established in Universal Declaration of Human Rights. Although in theory (law in books), all standards relating to human rights apply in Portugal, in reality, immigrants, especially those in irregular permanence, are out of scope (law in action).1 There is a clear gap between law in books and law in action. Baganha2 wrote that those migrants were becoming part of an “ethnoclass”, a symptom of their exclusion from society and from law. And as Capucha3 has shown, access to rights of citizenship and social participation are an essential condition to the social inclusion of individuals.

  • 4 Pedroso, J.; Guia, MJ; Branco, P.; Casaleiro, P. (2012) Os sem direitos: a cidadania (limitada) dos (...)

3In this article, we present some of the main results of the research project “Without rights: the (limited) citizenship of illegal immigrants and their access to law and justice in the European Union and Portugal”, financed by the Portuguese Science and Technology Foundation (reference PTDC/CPJ-CPO/98508/2008), held between 2010 and 2012 at Centre for Social Studies (CES), Coimbra.4 In this project, we categorized the immigrant flows in Portugal; the profile of immigrants and their practices; as well as those from public administration towards immigrant populations, namely related to their civil, political, social and economic rights. We studied the human rights framework (international and European law) towards immigrants and their access to nationality and Portuguese citizenship, approaching the fundamental rights and duties attributed to non-nationals in Portugal, in the areas of the rights of family, health, social security and the access to law and justice.

4In this article, we present some of the theoretical aspects on how questions of citizenship and irregularity work to enhance the inequalities to which immigrants are exposed. We also present some of the results on this subject collected in the focus group. We conclude by showing how, nowadays, citizenship is stratified in European Union and Portugal depending on the access to a certain documents and positions, which is, by its turn, based upon the nationality and the ties to the receiving country that a migrant possesses.

2. The research project and methodology

5The research project “Without rights” focused on international and national law governing the rights of legal / illegal / irregular permanent immigrants and the impact of laws applicable to immigrants, institutional performance and practice in Portugal that facilitates or hinders access to law and justice; particularly in areas related to the law of nationality and legalization processes and of family law and labour law.

6This research project was carried out at international and national level (through available data) and at local level, within enabling instances of access to Law, state and non-state institutions, in the city of Lisbon (being the Portuguese city with the highest concentration of immigrants). These two scales of analysis and the study of the representations of institutional and NGO actors allowed us to elaborate a socio-legal map characterizing the performance of the means to access law and justice of immigrants in illegal/irregular permanence, which is fundamental since the access to Law and Justice is an essential condition to positive social inclusion of immigrants in Portugal. Taking into account the goal of this research project, as well as the lack of quantitative information, we decided to take an approach combining quantitative and qualitative techniques, in a methodological triangulation. First, we focused on the documental analysis of national and international legislation (mainly from the European Union and Portugal), legal instruments, including the international treaties and conventions, directives and “softlaw” (eg. EU recommendations). Using the concept of citizenship, which has multiple layers, we identified the fundamental rights (political, civil and freedoms and social and economic rights) that a non-national individual of a particular country can access and therefore mobilize residence status: those which allow one to have: legal status of full citizenship equal to a national; or, limited citizenship status; or, “almost” non-existent citizenship status with only limited access and mobilisation of these rights, compared with Portuguese citizens.

  • 5 General Direction of the Justice Policy (a governmental institution for statistics of Justice).
  • 6 Official statistics from the Immigration and Borders Service (Serviço de Estrangeiros e Fronteiras)
  • 7 Alto Comissariado para a Imigração e Diálogo Intercultural (High Commissionaire for Immigration and (...)
  • 8 The selection of the association of immigrants was done among those recognised by ACIDI, following (...)

7Secondly, to contextualize nationally and locally the immigration evolution in Portugal, we conducted a Statistical analysis from different sources such as National Institute of Statistics, DGPJ,5 SEFstat6; Eurostat, ACIDI7 and the Observatory of Immigration. Finally, we carried out several interviews and focus groups with representatives of governmental and non-governmental organizations that develop work in the area of immigration (Portuguese Barrister College, Public Security Police, APAV (Portuguese Association of Supporting Victims), ACIDI, Social Security, immigrant associations8) and participants were asked about the institutional performance and the current practices in access to Law and Justice mainly in areas such as the right to nationality or regularisation, in family law and labour law.. In this article, we focus on the results of these interviews and focus groups.

8The interviews and focus groups followed a semi structured questionnaire and were recorded and transcribed To analyse this information, we used an analysis grid with three major areas: 1.) Policies of Immigration (subdivided into 1. Critics to the Portuguese policies of immigration; a) The directive of return and its transposition); 2) The problems and conflicts that involve immigrants in Portugal: the question of access to Law and Justice (subdivided into 2. The problems faced by immigrants in Portugal; a) Legal Entry and legalization; b) Family Reunification; c) Health; d) Education; 3) Judiciary support: the question of non-access of immigrants in illegal/irregular permanence or undocumented) and 3) Networking of Support (subdivided into 1) The mission of ACIDI; 2) The mission of the Associations of Support to Immigrants; a) Networking of organizations of support and articulations – ACIDI, SEF, NGO’s), b) Specific problems (domestic violence; human trafficking; victims of crimes, etc).

3. Citizenship and irregularity

9The construction of societies and the welfare of their populations have been conquered progressively through time. The movement of populations looking for other societies and better conditions of life have always happened. Each State and society “reacts” differently towards others coming from the “outside society” (de)limiting their access to rights, as well as the (im)possibility of exercising their rights, attributing them a status of limited citizenship or even that of “non-citizenship”. The reflection upon the relationship between the State and European citizens and non-nationals from third countries, brought us to the topic of citizenship, the rights and equality that should unite and defend all categories of non-nationals in the same way.

  • 9 With the use of the word ‘citizenship’ we want to identify all the rights that a non-national indiv (...)
  • 10 Santos, B.S. (2009), “La Globalización, los Estados-nación y el Campo Jurídico: de la diáspora jurí (...)
  • 11 Pedroso (2011) Acesso ao Direito e à Justiça: um direito fundamental em des (construção). O caso do (...)
  • 12 Internal borders: the common land borders with States part of convention [of the Schengen Agreement (...)
  • 13 Bauböck, R. (Ed.) (2006) Migration and Citizenship. Legal Status, Rights and Political Participatio (...)

10The concept of citizenship9 is thus problematized taking into account the concept of physical and subjective ‘border’10, since not all individuals benefit totally or partially from the rights that should be equal to all citizens. Citizenship is thus used here as a pathway to access total rights11 that are recognised and conceived to those who come from a certain origin and because of that condition benefit from the protection of a state. In European Union the membership to the macro-space Schengen and the inter relation with other European Union countries are materialized through the dimming of internal borders,12 in favour of a citizenship that should be attributed to every and all person who live together in that space13.

  • 14 With the word ‘irregularity’ we want to categorize the ‘limbo’ state in which individuals remain, c (...)
  • 15 Return: the return of third country non-nationals to their country of origin or from where they wer (...)

11The relationship between citizenship and irregularity14 has been a constant in our research. Not accessing rights, non-national individuals become invisible, diluting in the space they live in, entering frequently in informal and criminal schemes (when they are not subject of return15 to their country of origin). This puts them in a position of deep vulnerability, imposing upon them the difficulty and obligation of making themselves accepted in the receiving society.

  • 16 Canotilho, Joaquim (2007), “Ter cidadania/ser cidadão. Aproximação à historicidade da implantação c (...)

12Despite the importance of accessing certain rights, the implications that result from what we understand by ‘citizenship’ and how that reflects on the delimitation of access to those rights, in which also the right to a nationality of the receiving country16, obliges us to face the existence of a differentiation (when we think about non-national individuals).

  • 17 Sousa Santos, Boaventura (2003) Reconhecer para Libertar. Os Caminhos do Cosmopolitismo Multicultur (...)

13In effect, and even if we try to universalize the rights, searching for the construction of an “European citizenship”, the truth is that individuals are confronted with a stratification of citizenship, due to a multiplicity of factors (among others the place of origin, familiar ties and the designed goals when moving to the destiny country). That stratification17 will determine what rights will be available or denied access (since they will be differentiated). Consequently they will be put into positions of inequality, towards nationals and between them, and voted to social exclusion.

  • 18 Guia, M.J. (2015) Imigração, Crimigração e Crime Violento. Os Reclusos Condenados e as Representaçõ (...)
  • 19 Idem.

14Through the distinctions of citizenship and nationality we proceed to the analysis of the construction of European citizenship concluding that there are several categories of European citizenship: citizens born in the EU; eurommigrants;18 visitors from EU,19 refugees from European countries; resident immigrants from third national countries (and their relatives) and circulants from third countries. On a different set of layers of citizenship, European law still categorizes immigrants as “individuals in irregularity”, “individuals in irregularity victims of crimes”, “individuals in irregularity in violation of an interdiction of entry in Schengen space measure” and “inadmissible individuals”. In effect, we assist to a stratification of citizenship, where individuals are placed (mainly those in irregularity) in a vulnerable position and a social marginalization which restrains them or complicates their access to their rights in the EU space and consequently also in Portugal.

4. Representations of the professionals involved in the field of action

15In interviews and focus groups, the governmental institutional voices emphasized integration, inclusion and the access to rights of immigrants in Portugal as one of the best in Europe while immigrant NGO’s highlight the existence of practices hampering the access to rights by immigrants in general and specifically by those in irregularity or illegality. We have identified critics to the immigration policy, going mainly through the problems that affect immigrants in Portugal: like questions of legal entry, legalization, judiciary support, among others. We have also reflected upon the strengths and weaknesses of the justice regime and social practices of those working in the field of access to law and justice by immigrants in Portugal, specifically in Lisbon.

4.1. Immigration policy

16In what concerns the immigration policy, if, on one hand ACIDI manifests an institutional vision, presenting a very positive and inclusive framework of immigration policies, on the other hand, from the association of immigrants there has been criticism and dissenting voices towards that institutional vision that is presented as discretionary and promoting vulnerabilities, not recognizing the effective participation of immigrants in Portuguese society.

 

17[Immigrants in irregularity} are treated as marginal, when they are located in workplaces, most of the time they are notified to leave the country; so, even if it is an invitation, it should not be this way you treat someone who working, and it’s not his fault that he does not have a working contract. And he is there because he wants to become legal. And then we see the contradiction of law that states something like: to legalize an individual it is necessary that this person has a job and regularized social security, it is written. (...) The situation is like this in Portugal: there are European Union guidelines, there is the return directive, which is the “shame directive”, the expulsion one, which treats immigrants as criminals. (NGO2)

 

18Regarding the immigration policies, the most debated topic was the Return’s Directive and its transposition to the Portuguese justice system. Immigrants associations see this Directive and the way in which it has been transposed to the Portuguese law as a way to expel immigrants, mainly those who are in a more vulnerable situations, as the undocumented, reverting to a criminalization policy over immigrants in irregularity.

 

19Return Directive has accelerated the expulsion of immigrants. (...) When the person does not leave voluntarily, he/she will be arrested and will be expelled. We have cases of immigrants who came to Immigration and Borders Service (SEF), they were arrested and expelled. (NGO2)

20The directive in itself criminalizes immigration and provide for the expulsion of immigrants. In a form of invitation or under an expulsion process. People are questioning what is the defense that foreign nationals have in these cases. All resources have a merely devolutive effect. The person is expelled, period and paragraph. And then we’ll see. Nobody cares about these processes. (NGO2)

 

21The representative of ACIDI believes that the new Aliens Act, proceeding with the transposition of the Directive, has brought benefits to the legal status of immigrants: such as the right to education, the right to be held as family units; and, the right to legal aid among others, which will benefit people who are in an irregular situation.

 

22What we did in the transposition of the Directive was to transposed special rights that currently do not exist. Before the Return Directive, before 2008, there were European Union states who had no detention maximum periods in installation centers. What the Return Directive introduced was to present the minimum periods that countries had to fulfill. Now Portugal is no different in that, and it is good to say this: Portugal transposed the most favorable regime. (ACIDI)

4.2. Access to Law and Justice: from the legalization process to the access to rights

23ACIDI and NGOs play complementary roles in the support and promotion of access to law and justice of immigrants in Portugal. ACIDI highlighted its role in the integration of immigrants and ethnic minorities in Portugal, namely through the national support centers for immigrants, based on the concept of the “one stop shop”, which aim to concentrate in the same physical space all the services that immigrants need for integration, also forwarding immigrants to other entities that can help solving their conflicts, and providing a telephone translation service for non-nationals.

24Associations that provide to support immigrants develop activities in different areas of intervention, ranging from support in processes of legalization, to family reunification or providing legal information about the rights that immigrants have in Portugal. They are also referral points to other organizations or public bodies with knowledge and skills in specific areas, thereby highlighting the importance of networking. The associations that support immigrants also raised certain challenges they face. Among these problems there is the issue of domestic violence (pointing out also the issue of female genital mutilation), the higher vulnerability of immigrants as victims of crime (they are often victims of racial discrimination) and here the issue of human trafficking is also implicated. On this specific aspect the Institute of Social Security funds a response that is the center of care and protection for victims of human trafficking.

25The NGOs presented a more critical discourse than the governmental institutions on the mechanisms of access to law and justice for immigrants. However, they agreed on the main problem: the legalization process, and both identified legal support for access to law and justice as a universal problem.

4.3. Legalization process

26On the problems faced by immigrants in Portugal, and on a scale of problem situations, the discussants were consensual in placing legal entry and legalization at the head of the most serious problem, followed by later issues of family reunification, education and health.

27Thus, problems pointed out to be the most serious for those arriving to Portugal, or already living in Portugal for many years in their relationship with the state, have to do with the allocation of rights and duties that allow framing their situation in a legal and settlement system, and do not perpetuate a state of vulnerability, thus the issue of legalization still appears as a key problem.

 

28The central issue is the lack of legal entry. (...) Only those who have legal entry, work and social security can be legalized. (...) There are mechanisms here, not only this, that funnel itself the regularization of immigrants in Portugal and keep them in a complete vulnerability. (NGO2)

 

29NGOs point to the patent duality in the immigrant settlement scheme, to the extent that law provides that people who are in a labour situation may legalize, while punishing employers who employ illegally staying immigrants.

 

30This current Law is a law that may allow you to legalize as to prevent you from legalization. This law allows that people who do discounts, and have a work, they can apply for legalization. On the other hand, this law also says to employers “take care, you can not engage illegal immigrants.” (NGO3)

 

31As in other matters, the institutional view on this subject, by ACIDI, is less serious than the one presented by the associations that support migrants, referring to the case of extraordinary regularization of non-nationals, figure that on the past five years has enabled the legalization of a considerable number of immigrants in irregularity.

4.4. Family reunion

32Regarding the possibility of family reunification, and although we see positive results, including by the own admission of the associations that support migrants, it is widely accepted that there is still treading a path towards a full and efficient operation of family reunion. There have been identified some practical restrictions on their compliance, including the practical impossibility of making a shared application, and criticism has been made regarding the functioning of the different services.

 

33Family reunification has had, in fact, very positive results, there are many foreign families residing in Portugal through family reunification. (NGO2)

34In the case of shared family reunification: a father requires his wife and son, law says that the delivery of the roles of the whole family could be done at once, but in practice it does not happen. First it is approved the applicant’s father, only then it is possible to ask for the child. (NGO1) The reunification of families often depends from practices and places. (...) It has much to do with the family income, ie the right to family reunification is not inalienable. If I am poor, I have no other means of subsistence, I am unemployed, I get the minimum wage, I can not bring my family. (...) Immigrants are often to get someone’s family or living with family help to sign a statement of responsibility, to join more revenue. (NGO2)

4.5. Education rights

35With regard the immigrant access to education (those in regular and irregular situation), the situation in Portugal is presented as very positive, according to ACIDI. The universal principle that, in Portugal, no child can have their registration refused based on the immigration status of parents being in regularity or irregularity, has been highlighted:

 

36There is a universal principle that no child in Portugal may have its registration refused on the status of parents being regular or irregular. (...) In view of this basic principle, the work of education is to solve, is to create a database of children who are in an irregular situation in Portugal and resolve potential issues that may occur. (ACIDI)

 

37The representative of ACIDI also drew attention to the issue of confidentiality of the database created for this purpose:

 

38Attention to a very important aspect of this diploma: the confidentiality of the database. Ie, ACIDI, being the holder of that registration information is prevented, by specific legislation establishing the register, to forward information to third parties, namely the SEF (Immigration and Borders Service) for the purpose, for example, of identification or official investigation of children whose parents may be suspected perpetrators of crimes or people being in irregular situation. (ACIDI)

 

39However, the issue of universal access to education is not consensual, as part of immigrants’ associations denounced blockage situations. So it is true that refusals of enrollment in primary education are not made, but when students reach the end of this journey and want to move further, while still undocumented, they see their hampered lives, because schools do not accept immigrants in illegality. Thus, in order to deal with these situations, immigrants’ associations have created some exception mechanisms, such as the “Active Neighborhood” program.

 

40Schools see things going on and on, but then they are awaiting legalization, while the person keeps doing everything. If the person leaves the 9th grade and want to follow the vocational track, she/he can’t do it. School does not accept illegal immigrants. Any training provided it is uneven, you can not do. (NGO2)

4.6. Health rights

41In terms of immigrants’ access to health care, whatever their situation, the picture in Portugal is also seen as positive. ACIDI states that there is, since 2001, a match between non-nationals and nationals with regard to access to the national health system. Nevertheless, it is recognized that there are still some blockages, especially on the part of the health facilities and hospitals, which sometimes refuse to take the care of immigrants in irregularity, such situations were also identified by the NGOs. Furthermore, in these situations the system is more complex than in schools, since it is necessary to present evidence while with education it is only necessary to make a record, which is confidential and does not go to the authorities. As blocking reasons, on the one hand, the lack of professionals (doctors, nurses and administrative staff) is pointed out; and on the other hand, some grudge in interaction with immigrants. The representative of ACIDI therefore believes that there is need for training of health workers in these issues of immigration and to promote the placement of intercultural mediators in health centers and hospitals in order to solve these problems.

 

42(...) Undocumented immigrants have equal access to the national health system as Portuguese citizens. (...) With health centers and hospitals, there are sometimes still deadlock situations. (...) In health you need to present evidence of the parish council, the conditions of residence, among others. (...) Indeed, the system sometimes has entropies, which will be solving. (ACIDI)

4.7. Right to access to law and justice

43As a global problem, the question arose of immigrant access to law and justice. On the issue of granting legal aid to non-nationals in an irregular or illegal permanence, ACIDI considers that there are serious problems in the operation of the legal aid system, which leaves out all illegal immigrants, since Social Security does not give them the benefit of legal aid. While, paradoxically, the prosecution is working with immigrants in an irregular / illegal position, although only in the area of labor disputes against employers who have not paid salaries to these immigrant workers, based on applicable constitutional and labor laws. Consequently, the representative of ACIDI believes that illegal / irregular staying immigrants should have access to legal aid, which entails the consequent amendment of the legislative regime.

44The representative of the interviewed Order of Lawyers also believes that any discrimination of legal aid system for immigrants who are in irregular / illegal situation is unconstitutional, and constitutes a first offense of Article 1 of the Portuguese Constitution, which stipulates that the state is based on human dignity, without reference to nationality.

45This is not, however, a consensus issue, as the representative of the Social Security Institute (SSI), an organization that manages the evaluation and granting of applications for legal aid, opposes changing the situation. However, it appears that the granting of support has to do mainly with legalization processes and not other matters.

 

46In our experience it is not true. I’m sorry not to have that data here. (...) When we try to quantify these requests of legal aid we can not. We have identified, however, that, paradoxically, the greatest number of applications there is exactly why legalization decisions. (SSI)

 

47This is further corroborated by some associations supporting immigrants:

 

48Social Security appoints [lawyer] when the person has financial difficulties, even in irregular situation. This is the experience we have for many years. (NGO2)

 

49We understand that non-nationals without valid residence permits in Portugal who show economic need should have the same rights to legal protection as those with residence permits regardless of their States of nationality grant or not those rights to Portuguese citizens, according to articles 12, 13, 15 paragraph 1, 18 paragraph 2, 20 of the Constitution of the Portuguese Republic. We thus think law and the established administrative practice seem unconstitutional. Consequently, we propose as a way to compensate this current situation, a concerted action, a “public action policy” among some state services, whose mission would be the inclusion of immigrants, with immigrant associations in order to provide other means of accessing to law and justice.

50Another situation referred to in terms of the system of access to law and justice has to do with the limitations imposed by law of own acts attorney, which makes it impossible for entities other than lawyers themselves, to provide legal advice to citizens, under the penalty of practicing unlawful prosecution.

51The position of ACIDI is quite particular, in respect of the limit imposed by the own act of the attorney, given that, on one hand, it confirms that he/she can not exercise the warrant and his/her action is merely to refer to the appropriate bodies. On the other hand, it considers that if there was a change in the law that would allow him/her to exercise the mandate, and this would detract from the limit of their powers and the strategy for action, and therefore considers that the limit makes sense and it is important that people know how the system works. However, and although it may not take judicial mandate, one of ACIDI’s missions is to provide legal information to immigrants, assisting them on how to make requirements. In addition, they have also established partnerships with the Bar Association.

52But there are those who criticize the existence of a legal aid office within ACIDI itself, considering to be contradictory the state having a legal cabinet that challenges the state itself. This is, of course, disputed by the representative of ACIDI, insofar as they consider that the existence of this office gives a guarantee of accessibility for immigrants.

53Another of the reported problems is related precisely to the poor performance of some lawyers, going against their ethical guidelines and taking advantage of the vulnerable situation within which they find many of the immigrants (“ambulance-chasers” seeking to raise customers, often at the door of the Immigration and Borders Service) which is much criticized, whether by the associations supporting immigrants; and, by ACIDI who have indeed reported several fraudulent situations to the Bar Association. In addition, ACIDI has also established partnerships with the Bar Association:

 

54I also know situations, even of litigation with ACIDI itself, I sometimes get mad thinking how much the immigrant will have paid for procedural documents whose value is zero. (ACIDI)

5. Conclusion

55In Portugal we live with a tension between principles and the constitutional norms and the restrictive common law of access to rights and public services by immigrants in illegality; and, the practice of services and mechanisms for accessing to law and justice. The Constitution of the Portuguese Republic, through its general principles, safeguards the rights of immigrants in Portugal who have their status in the receiving country; assuming as essential the principles of human dignity, of universality and of equality. The principle of equality, under art. 15 of the Constitution stipulates that: “Foreigners and stateless persons temporarily or habitually resident in Portugal shall enjoy the same rights and be subject to the same duties as Portuguese citizens.” However, there are limitations of accessing to rights for irregular migrants in the four areas that we have studied: the right to gather a family and family reunification, the right to health, the right to social security and the right of access to law and justice.

56Access to most of the social and economic rights are guaranteed to all immigrants regardless of their nationality, provided they have regularized their situation, which does not happen with civil and political rights. The overwhelming majority of immigrants living in Portugal are “denied” from participation in political life because granting of the right to vote in municipal elections is dependent on bilateral agreements and other requirements such as residence duration, or denied because of their condition of irregularity. We thus live in a stratified citizenship (dominated by the European citizenship), where immigrants (from a Third Country) are classified depending on their place of origin, family ties and goals when moving to the receiving country. We could confirm our central hypothesis that the status of citizenship (European and Portuguese) is limited for immigrants (and extremely limited for those in illegal/irregular permanence).

57We also concluded on the existence of legal obstacles and practices in the public administration and social practices restricting immigrants’ access to law and justice. In effect, legal limitations join the concrete problems identified in the practical day to day by government institutions and NGOs working in this field, revealing a double limitation on access to and exercise immigrant rights.

58In all these areas, in one way or another, immigrants (and non-nationals) in irregularity are excluded or have limited access to the rights and benefits that are available to nationals, to EU citizens and to immigrants in legality (though also with some limitations), which, in our interpretation, it seems unconstitutional.

Notes

1 Canotilho, Joaquim (2007) “Ter cidadania/ser cidadão. Aproximação à historicidade da implantação cidadã”, in Cidadania uma visão para Portugal. Lisboa: Gradiva.

2 Baganha, M. I., Marques, J. C., & Fonseca, G. M. (2000) Is an ethclass emerging in Europe? The Portugueses Case. Lisbon: Luso American Foudation.

3 Capucha, Luís (1998) Pobreza, Exclusão Social e Marginalidade. In Viegas, J.M., & Costa, A. F. (orgs) Portugal, que Modernidade?. Oeiras: Celta Editora

4 Pedroso, J.; Guia, MJ; Branco, P.; Casaleiro, P. (2012) Os sem direitos: a cidadania (limitada) dos imigrantes ilegais e o seu acesso ao direito e à justiça na União Europeia e em Portugal. Coimbra:CES/UC.

5 General Direction of the Justice Policy (a governmental institution for statistics of Justice).

6 Official statistics from the Immigration and Borders Service (Serviço de Estrangeiros e Fronteiras).

7 Alto Comissariado para a Imigração e Diálogo Intercultural (High Commissionaire for Immigration and Intercultural Dialogue. Currently Alto Comissariado para as Migrações (High Comissionaire for Immigration).

8 The selection of the association of immigrants was done among those recognised by ACIDI, following these criteria: 1) associations of immigrants of the most representative communities established in Portugal (Brazilian, Ukrainian, Angolan and Cape Verdean); associations that were not only focused in exclusive cultural focus..

9 With the use of the word ‘citizenship’ we want to identify all the rights that a non-national individual from a certain country may access, achieving a total acceptance in the receiving society, at a macro-level but also at a micro level. We refer to different meanings and historical moments in which the concept of ‘citizenship’ has been used and even confused, reminding the existence of a stratification of citizenship to which many immigrants have been categorized while European citizenship was taking its steps (cfr. Guia, M.J. (2015) Imigração, Crimigração e Crime Violento. Os Reclusos Condenados e as Representações sobre Imigração e Crime. Tese de Doutoramento. Coimbra: Universidade de Coimbra).

10 Santos, B.S. (2009), “La Globalización, los Estados-nación y el Campo Jurídico: de la diáspora jurídica a la ecúmene jurídica?”, in idem, Sociología Jurídica Crítica. Para un nuevo sentido común en el derecho. Madrid: Trotta. pp 321-409.

11 Pedroso (2011) Acesso ao Direito e à Justiça: um direito fundamental em des (construção). O caso do acesso ao direito e à justiça da família e das crianças. Dissertação de Doutoramento em Sociologia do Estado, do Direito e da Administração. Universidade de Coimbra. Available at https://estudogeral.sib.uc.pt/bitstream/10316/22583/1/Tese_Joao Pedroso.pdf [23 de janeiro de 2015].

12 Internal borders: the common land borders with States part of convention [of the Schengen Agreement, of 14th june 1985, signed in Schengen the 19th June 1990, as l. h) article 3d of the same law], the airports, in what concerns direct and exclusively originary or with destiny to Schengen part of agreement flights, as well as maritime ports, in what concerns regular ships that make transhipment exclusively coming or going to other ports in territories in States part of convention Schengen, without any scale in ports out of these territories (Act 29/12, 9th august, art. 3, p).

13 Bauböck, R. (Ed.) (2006) Migration and Citizenship. Legal Status, Rights and Political Participation. Amsterdam: IMISCOE Reports. Amsterdam University Press.

14 With the word ‘irregularity’ we want to categorize the ‘limbo’ state in which individuals remain, calling the attention to the exclusion that suffer non-nationals of a certain country in a destiny area, remaining at the margins of society, mainly in what concerns their rights as human beings.

15 Return: the return of third country non-nationals to their country of origin or from where they were coming from after a decision of removal or under a communitarian or bilateral readmission accord or through other Conventions, or even the return to another third country of option by the non-national individual and in which they will be accepted (Act 29/12, 9th august, artº 3º, u).

16 Canotilho, Joaquim (2007), “Ter cidadania/ser cidadão. Aproximação à historicidade da implantação cidadã”, in Cidadania uma visão para Portugal. Gradiva.

17 Sousa Santos, Boaventura (2003) Reconhecer para Libertar. Os Caminhos do Cosmopolitismo Multicultural. Rio de Janeiro: Civilização Brasileira.

18 Guia, M.J. (2015) Imigração, Crimigração e Crime Violento. Os Reclusos Condenados e as Representações sobre Imigração e Crime. Tese de Doutoramento. Coimbra: Universidade de Coimbra.

19 Idem.

Auteurs

Researcher at CES since 1996 and member of the Research Group DECIDe. He has a Bachelor degree in Law, a Master degree in Sociology of Law, the State and Administration and a Ph.D. in Sociology of Law, the State and Administration from the University of Coimbra. He was awarded the Gulbenkian Prize for Social Sciences. Judge and Lawyer, he has been consultant to PNUD for the labour legislation reform in Mozambique, he was in charge of several public offices and has been teaching Trade Law and Labour Law at the Faculty of Economics, University of Coimbra, since 1991 – jpedroso@ces.uc.pt

She holds a Post-Graduation in Criminology, a Master in Sociology and a PhD in Law, Justice and Citizenship in the twenty first century from the University of Coimbra. She has been external expert EU in the area of Freedom, Security and Justice and an alternate member EU on Human Trafficking. She has been appointed SYLFF member for her organizational and leadership capacities. CINETS (www.crimmigrationcontrol.com) has been one of her academic major priorities. Her interest are centred in immigration and crime, crimmigration, human trafficking, the rights of victims of crimes, violent crimes, the rights of immigrants, prisons and detention – mariaguia@ces.uc.pt

Researcher at CES. She obtained her Doctoral degree from the University of Coimbra, the LL.M degree in Legal Theory from the European Academy of Legal Theory in Brussels, and has a Bachelor degree in Law from the Faculty of Law of the University of Coimbra. Her current research interests include access to law and justice, courthouse architecture, the relations between law and the humanities, the mutations of family and child law and its connections with gender issues – patriciab@ces.uc.pt

Junior researcher at CES and a PhD candidate in the Doctorate Program “Law, Justice, and Citizenship in the Twenty First Century” from the University of Coimbra. She has a M.A. in Sociology at the School of Economics of the University of Coimbra – pcasaleiro@ces.uc.pt
5 INE (2014) Statistics. Available in: http://www.ine.pt [last access: 15/09/2015]
6 From 2000 to 2001, there has been an increase of 69,04% on the number of non-national residents (2001, n=350.898). Nowadays, non-national resident population is n=395.195 (INE, 2014).

© Ledizioni, 2015

Conditions d’utilisation : http://www.openedition.org/6540