Lawful Presence as a Legal Process

Welcome to a new episode of the podcast Integration or ReImmigration.
I am Attorney Fabio Loscerbo.

Once the distinction between entry and permanence is restored, a necessary consequence follows: lawful presence cannot be understood as a fixed status. It must be understood as a legal process. Treating lawful stay as something static has been one of the main reasons why immigration systems have become rigid, incoherent, and ultimately incapable of governing reality.

A legal process unfolds over time. It involves conditions that must be met, obligations that must be respected, and evaluations that must be carried out. Lawful presence fits exactly into this structure. It is not a snapshot. It is a sequence of authorizations, verifications, and renewals that together define the relationship between the individual and the State.

However, in many immigration systems, lawful presence has been transformed into a quasi-permanent condition. Permits are renewed almost automatically, evaluations are formal rather than substantive, and time itself becomes the decisive factor. The longer someone stays, the stronger their position becomes, regardless of whether the underlying conditions continue to exist. Law is replaced by accumulation.

This approach creates a profound asymmetry. The individual’s position becomes increasingly solid, while the State’s capacity to intervene weakens over time. Any attempt to reassess the situation is perceived as disruptive or unjust, even when it is legally justified. As a result, authorities delay decisions, courts are pushed into emergency reasoning, and return is postponed until it becomes practically and politically impossible.

Understanding lawful presence as a legal process reverses this dynamic. It reintroduces the idea that stay must be continuously justified, not simply inherited from the past. Each phase of the process requires confirmation that the legal and factual conditions are still met. This does not mean constant surveillance or instability. It means structured and predictable evaluation.

This perspective also protects the individual. A process governed by law is preferable to one governed by tolerance. When conditions are clear, obligations are defined, and evaluations are foreseeable, the foreign national can understand what is required and adjust behavior accordingly. Uncertainty is replaced by responsibility.

One of the most important implications of this approach is the concept of reviewability. Lawful presence must be reviewable in light of conduct, integration, and compliance. Reviewability does not negate rights. It ensures that rights are exercised within a framework of legality. Without reviewability, lawful presence turns into de facto permanence, even when the legal basis has eroded.

The absence of reviewability also distorts the role of protection. Temporary or conditional forms of protection are often treated as if they were stepping stones to stabilization. Over time, their original function—to prevent specific legal violations such as refoulement—is overshadowed by an implicit promise of permanence. The protective measure becomes a surrogate residence status, detached from its legal purpose.

By restoring lawful presence as a process, protection is placed back in its proper context. Protection prevents unlawful removal. It does not, by itself, produce a right to remain indefinitely. It operates within a broader legal relationship that remains subject to evaluation and, when necessary, conclusion.

This is where the paradigm Integration or ReImmigration becomes operational. If lawful presence is a process, then integration is not a vague expectation but a legally relevant trajectory within that process. The State is entitled to assess whether integration is occurring in a substantive way, and the individual is responsible for demonstrating compliance with the conditions attached to stay.

At the same time, this framework legitimizes early and proportionate decisions. Instead of allowing unresolved situations to accumulate for years, the State can intervene at defined stages. When conditions are no longer met, the process can be lawfully concluded before permanence becomes irreversible. This reduces conflict, litigation, and social tension.

Viewing lawful presence as a legal process also has a systemic effect. It reconnects immigration law with general principles of administrative law: conditional authorizations, periodic review, proportionality, and due process. Immigration is no longer an exceptional field governed by improvisation, but a normal area of public law.

In the next episode, we will examine one of the key instruments designed to structure this process: the integration agreement. We will analyze why integration must be framed as a legal obligation rather than as a political aspiration, and what happens when that obligation is emptied of substance.

Thank you for listening.