Discrimination on the grounds of nationality Ana Rita Gil FDUNL, 17 November 2014
I Introduction
Aliens, Foreigners The outsiders Relation between where we are who we are Nowadays traditional dichotomy is disappearing Citizens of the Portuguese-Speaking Countries Citizens of the EU: right to free movement - principle of non-discrimination - political rights Law n. 37/2006 of 6th de August Law n. 23/2007 of 4th de July (amended by Law 29/2012, of 9th August)
Cathegories of Migrants Voluntary Migration vs. Forced Migration - Refugees - Subsidiary Protection Immigration International Protection
Who are the national Citizens? State Sovereignity Portugal: Organic Law n. 2/2006 of 17th April Systems: - Birth Acquisition: - ius soli vs. ius sanguinis - Acquisition after birth:. naturalisation. family acquisition
II Do Aliens have rights?
1º - Public International Law answers
International Human Rights Instruments -General Instruments - Special Instuments
General Instruments: - Universal Declaration of Human Rights - International Covenant on Civil and Political Rights - Convention on the Rights of the Child - European Convention on Human Rights - Charter of Fundamental Rights of the EU Are they applicable to Aliens?
Universal Application: UDHR All Human Beings (art. 1) ICCPR - all individuals (art. 2) Commentary n. 15/27 of 22th July ECHR everyone within their jurisdiction (art. 1) UE CFR everyone / residents / EU citizens
Exceptions Political Rights Rights connected to the territory Social, Economic and Cultural Rights Developing countries, with due regard to human rights and their national economy, may determine to what extent they would guarantee the economic rights recognized in the present Covenant to non-nationals (art. 2, n.º 3 ICESCR)
Irrelevance of the legal status ICCPR : Exception Art. 13. (guarantees for the expulsion procedure) - Art. 12., n.1 (right to freedom of movement) ECHR : Exceptions: Art. 1 of Additional Protocolo n. 7 (guarantees of the expulsion procedure ) Art. 2 of Additional Protocol n. 4 (right to freedom of movement) EU CFR rights of the Human Being vs. rights of the resident
Special Instruments: - Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live (1985) - United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) - Conventions n. 97 (1949) and 143 (1979) of the ILO on Migrant Workers - European Social Charter - European Convention on the legal status of the Migrant Worker (1977)
Does International Law prohibit discrimination on the grounds of Nationality?
Non-discrimination on the grounds of nationality Art. 2. UDHR - Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Art. 2. ICCPR - Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Art. 14. ECHR - The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Non-discrimination on the grounds of nationality To sum up: Regarding all rights recognised to Aliens principle of non-discrimination on the grounds of nationality Non arbitrary distinctions are allowed Broader margin of appreciation regarding immigrants without a legal status
Discrimination regarding some categories of Aliens Regarding the nationality ECHR - Moustaquim c. Bélgica, 1991 ECHR - Koua Poirrez c. França, 2003 Regarding the type of residence permit ECHR - Niedzwiecki v. Alemanha, 2005 Regarding the legal status ECHR - Anakomba Yula c. Bélgica, 2009
II Answers of the Portuguese Constitution
General Principles Principle of the Dignity of the Human Person (art. 1) Principle of the Universality (art. 12) Principle of the Equality (art. 13 e 59)
Principle of Assimilation Artigo 15. (Foreigners, stateless persons, European citizens) Foreigners and stateless persons who are or who reside in Portugal enjoy the same rights and are subject to the same duties as Portuguese citizens. ( )
Principle of Assimilation Encompasses all the rights Aliens who are present or who reside in Portugal - regardless of legal status Exceptions (n.2): 1. political rights / public service 2. exceptions foreseen in other constitutional norms 3. exceptions foreseen in the law (considered as a restrictive law)
Recognition of a right to Immigration?
There is no Right to Immigration Right of entry into the national territory only for National Citizens Art. 13, n.2 of the UDHR: Everyone has the right to (...) return to his country Art. 3, n.2 of the 4th additional Protocol to the ECHR: No one shall be deprived of the right to enter the territory of the state of which he is a national. Art. 44., n. 2 of the Portuguese Constitution: Every citizen is guaranteed the right to emigrate or to leave Portuguese territory and the right to return thereto TC it is only applicable to national citizens(ruling. 359/93)
The recognition of a Right to Emigration Art. 13, n.2 of the UDHR: Everyone has the right to leave any country, including his own (...) Art. 12, n. 2 of the ICCPR: Everyone shall be free to leave any country, including his own Art. 2, n.2, of the 4th additional Protocol to the ECHR : Everyone shall be free to leave any country, including his own
There is no absolute protection against expulsions Prohibition of Expulsions only for national citizens Art. 3, n.1 of the 4th Additional Protocol to the ECHR: No one shall be expelled, by means either of an individual or of a collective measure, from the territory of the State of which he is a national Art. 33 of the Portuguese Constitution: The deportation of Portuguese citizens from Portuguese territory is not allowed.
ratio national sovereignty: - Impact of the immigration on the concept of State - Impact of the immigration on the interests of the State
Current solution: the compromise Sovereignty Human Rights Forced Migration Voluntary Migration
Forced Migration International Protection - Refugees (Asylum) - Subsidiary Protection Entry - Resettlement - Non Refoulement No Expulsion
Voluntary Migration Protection under other Human Rights Most common situations: - Prohibition of expulsion in case of torture, inhuman or degrading treatment or punishment. - Protection of Family and Private Life
Prohibition of expulsion in case of torture or inhuman or degrading treatment or punishment Encompasses: torture or inhuman or degrading treatment or punishment Risk of persecution (of the State of other actors) Serious illness (exceptionally) (TEDH, D. v. United Kigdom, 1997) Impossibility to travel due to physical condition
Protection of Family and Private Life Encompasses: Right to family reunification Right to not be expelled from the country
Rights in the Immigration Context
Rights on Expulsion Procedures Prohibition of Collective Expulsions Art. 4 of the 4th additional Protocol to the ECHR Art. 19, n.1 of the EU CFR
Rights on Expulsion Procedures Procedural Guarantees in case of expulsion Art. 13 of the ICCPR & Art. 1 of the 7th additional Protocol to the ECHR Only for the expulsion of legally resident aliens: Conformity with the law, Authority deemed competent, Right to submit reasons against the expulsion, Right to have the case reviewed, and to be represented for this purpose before the competent authority ECHR: It is not mandatory for the review to suspend the effects of the decision (art 13. ECHR)
Portuguese Constitution Prohibition of Automatic Expulsion (Art. 30, n.4) - Ruling n. 359/93 - Procedural Rights (Art. 33, n.2) 1. ( ) 2. Expulsion of those who have legally entered or legally remained in Portuguese territory, who have been granted a residence permit or have submitted a request for asylum that has not been refused, may only be ordered by a judicial authority. The law shall assure expedite forms of decision in such cases. Expulsion of non legally staying aliens purely administrative - possibility of review, but the effects of the decision will not be suspended (Art. 150. of the Immigration Law)
Detention of Immigrants Art. 9 ICCPR and Art. 5, n.1, al. f) ECHR 1. Lawful 2. Fair and not impredictable 3. Only applicable if necessary for avoiding unlawful entry or when an expulsion procedure is in course 4. Alternative measures 5. Procedural guarantees 6. Reasonable lenght + periodically reviwed 7. Legal, humanitarian and social aid 8. Adequate conditions
Detention of Immigrants (Portugal) Portuguese Constitution: Art. 27, n. 3: allows imprisonment or detention of, or the imposition of any other coercive measure subject to judicial control on, a person who has unlawfully entered into or remains unlawfully in Portuguese territory, or who is being subject to extradition or deportation proceedings. Immigration Law: Art. 146. - 48h present to the judicial authority - maximum lenght - 60 days - asylum seekers
CURRENT DEBATES: 16 October 2014: Australian Campaign to stop illegal immigration Problem: - Fighting agains illegal immigration Vs. - International Protection of Forced Immigrants
21 October 2014 TEDH: conviction of Italy and Greece for disrespecting Human Rights of Immigrants (Sharifi e outros c. Itália e Grécia) - Disrespect of the prohibition of collective expulsion - Disrespect of the principle of «non refoulement»
Immigration: Controversial Issues Ana Rita Gil FDUNL, 13th November 2013
Immigration Miths and Facts -Criminality and Immigration -Unemployement and poverty -Burden to the social security services
Regularization of illegally staying aliens
Reasons For - Acquisition, by virtue of time, a right to reside adverse possession - End to Exploitation situations - More advantages to the society Reasons Against - Call efect - Lost of Borders control - More advantages to the society
Right to Cultural Identity
Controversial Questions: - religious symbols - violation of the physical integrity - concept of family
Reasons For - Personal Identity - Easier Integration - Equal Dignity / Respect of all the cultures - Respect for the Culture of origin (Framework Convention for the Protection of National Minorities, 1995) Reasons Against - Fundamental principles of the host country - Full integration
Main Principle - balance between: 1. cultural identity of the immigrant 2. fundamental values of the host community Advocacy of the Intercultural Dialogue
Recognition of effects to Poligamous Marriages
Reasons against - Sovereignty of the host country - Cultural identity of the host State - Legal harmony of the host State
Reasons against - Principles disrespected: 1. Monogamy 2. Secularism 3. Equality 4. Women s Dignity
Reasons in favour - Equal treatment for laws - Respect for the immigrant s cultural identity - Stability of the legal relations - Acquired Rights - Protection of wives and children of polygamic marriages
Need to recognise effects - Those effects that aim at protecting wives / children: Ex: - Maintenance obligations - Inheritance - Compensation for damages due to death