The Scope and the Legal Limits of the ‘Immigration Federalism’: Some comparative remarks from the American, Belgian and the Italian experiences
Title: The Scope and the Legal Limits of the ‘Immigration Federalism’: Some comparative remarks from the American, Belgian and the Italian experiences
Author: STRAZZARI, Davide
Citation: European Journal of Legal Studies, 2012, Vol. 5, No. 2, pp. 95-137
External link: http://www.ejls.eu/
Traditionally, immigration has generally being conceived of as a matter to be dealt with by the national legislator. However, immigration federalism - that is, the regulatory role that sub-national territorial units, enjoying legislative powers, experience with regard to issues related to immigration policy - has become a very sensitive issue in many countries. By focussing on the comparison of three legal systems (the USA, Belgium and Italy), this article highlights three main issues challenged by the emergence of immigration federalism: the division of powers, access to welfare and cultural-linguistic integration in the context of multinational states. The comparative analysis reveals one important difference between these countries. While in the US immigration is interpreted as a federal reserved power - allowing the federal authorities to regulate, not only, the entry and stay of aliens, but also their rights and duties, to the point of encroaching on State matters - this does not occur in both Italy and Belgium. As a consequence, in these two countries sub-national units have had more chances to freely develop immigration-related policies. In the Italian case this has occurred especially in the field of welfare, while in Belgium it has emerged in the linguistic integration policy. At the same time, however, the judiciary has used the principle of equality and the protection of fundamental rights to ensure a certain level of territorial harmonisation, and contrast discriminatory approaches by the sub-national units. Both models present some inconsistencies. In the final part of the essay, we suggest the development of cooperative federalism as an alternative means of structuring territorial relations within the immigration field. This solution seems more consistent with the idea that immigration is not in itself a jurisdiction, but constitutes a policy, composed of measures falling under various constitutional jurisdictions, which are vested in both the national and the sub-national tiers of government.
Type of Access: openAccess