Within the European Union the change of the structure of national communities because of migrations lato sensu (and in particular because of the so called stabilized migrants) has caused the partial erosion of the traditional dichotomy between the status of citizen and that of non citizen (alien) and the increasing marginalization of the principle of reciprocity between States. Such process has been originated by the need of foreigners to be guaranteed in their human rights and their fundamental freedoms, so much referred to in the jurisprudence of the European Court of Human Rights, of the Court of Justice but also of the Italian Constitutional Court. The respect for such needs, apart from the status civitatis, has caused a gradual extension, in favour of non citizens (rectius: citizens of Third-Countries), of some rights traditionally reserved for citizens. Such rights are based on a kind of “stabilization” of the migrant in the host State, which causes the gradual weakening of the otherness characteristics compared with itself and the underlying community; they receive a different “gradualization” according to the degree of stability characterizing the link between the migrant and the host State, even if the solutions adopted within the systems of the European States cannot be assimilated. This article explores the substantive and procedural contents of the “Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long- term resident” as one of the legal steps towards a EU approach on regular immigration. Because of its difficult implementation (witnessed by the Report to the European Parliament and to the Council on the application of this Directive in the Member States of 28 September 2011) we underline the provisional nature of the “statute” of the long-term resident between national citizenship and European citizenship. At the same time, we consider the most recent developments in European case law (judgments of the Court in the cases Kamberaj and Commission v. The Netherlands). They certainly contribute to implementing the principle of equal treatment especially in sensitive areas such as social security, social assistance and social protection. We hope that the gradual “emancipation” - carried out both in the derived law and in the jurisprudence of the Court of Justice - of the Italian citizenship, as regards its being functional to free market, is liable to produce effects also as regards the rights of foreigners coming from Third Countries. In the light of a synthesis between “inclusionary and exclusionary” dimensions of citizenship the passage could be from a European citizenship which has been for a long time the “fundamental status” of the citizens of member States, to an intermediate status “with real significance for everyone”, becoming a real instrument of social integration.
La perdurante frammentarietà dello "statuto" europeo del soggiornante di lungo periodo tra integrazione dei mercati ed integrazione politico-sociale
DI STASI, Angela;PALLADINO, ROSSANA
2012-01-01
Abstract
Within the European Union the change of the structure of national communities because of migrations lato sensu (and in particular because of the so called stabilized migrants) has caused the partial erosion of the traditional dichotomy between the status of citizen and that of non citizen (alien) and the increasing marginalization of the principle of reciprocity between States. Such process has been originated by the need of foreigners to be guaranteed in their human rights and their fundamental freedoms, so much referred to in the jurisprudence of the European Court of Human Rights, of the Court of Justice but also of the Italian Constitutional Court. The respect for such needs, apart from the status civitatis, has caused a gradual extension, in favour of non citizens (rectius: citizens of Third-Countries), of some rights traditionally reserved for citizens. Such rights are based on a kind of “stabilization” of the migrant in the host State, which causes the gradual weakening of the otherness characteristics compared with itself and the underlying community; they receive a different “gradualization” according to the degree of stability characterizing the link between the migrant and the host State, even if the solutions adopted within the systems of the European States cannot be assimilated. This article explores the substantive and procedural contents of the “Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long- term resident” as one of the legal steps towards a EU approach on regular immigration. Because of its difficult implementation (witnessed by the Report to the European Parliament and to the Council on the application of this Directive in the Member States of 28 September 2011) we underline the provisional nature of the “statute” of the long-term resident between national citizenship and European citizenship. At the same time, we consider the most recent developments in European case law (judgments of the Court in the cases Kamberaj and Commission v. The Netherlands). They certainly contribute to implementing the principle of equal treatment especially in sensitive areas such as social security, social assistance and social protection. We hope that the gradual “emancipation” - carried out both in the derived law and in the jurisprudence of the Court of Justice - of the Italian citizenship, as regards its being functional to free market, is liable to produce effects also as regards the rights of foreigners coming from Third Countries. In the light of a synthesis between “inclusionary and exclusionary” dimensions of citizenship the passage could be from a European citizenship which has been for a long time the “fundamental status” of the citizens of member States, to an intermediate status “with real significance for everyone”, becoming a real instrument of social integration.I documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
