Chapter 4. Immigration Federalism and Rights
Immigration Regulation in Federal States, Forthcoming
Posted: 13 Jan 2014
Date Written: December 27, 2013
This chapter undertakes a comparative analysis of the growing asymmetrical immigration federalism regimes that have surfaced in Australia, Canada, the European Union, Belgium, Germany, the United Kingdom, Switzerland, and the United States. The purpose of the study is to begin to trace whether the rise in immigration federalism — i.e., the diversity of laws and policies regulating immigration and immigrants — in these nations has improved or worsened the rights and treatment of immigrants in those respective nations. This chapter does not provide a conclusive answer to this question because federal structures help amplify both restrictive as well as inclusive possibilities and trends. There are, however, factors that appear to contribute to the outcomes of immigration federalism that are worth noting. Among these factors is the role of demographic and socio-economic factors, as well as political ones at the local level. The role of political divergence between national and local interests is another significant consideration of the implications of federalism for the rights of immigrants, although here whether the outcome is positive or negative depends very much on the relationship between local and national politics. The role of binding universal human rights law or domestic constitutional rights to protect the rights of immigrants also cannot be dismissed as a powerful argument, generally in favor of centralization. As the Chapter documents, however, centralization does not necessarily translate to greater legal rights for immigrants in systems that apply exceptionalism to the national immigration power. Decentralization also need not mean the non-application of human rights law or even potentially greater local rights under sub-national constitutional provisions. Finally, the Chapter takes up the extremely important consideration of what, if any lessons, can be gleaned from these comparative analysis on advocacy strategies on behalf of immigrants. Here too, the response is highly contextualized and cannot be generalized, as it will be dictated by the factors that influence the outcomes of immigration federalism.
Keywords: Asymmetrical immigration federalism, Non-citizens’ rights and Protections, Restrictive vs. inclusive immigrant policies, Local Factors, Human rights law
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