Discrimination Discrimination on the grounds on the grounds

of nationalityof nationality

Ana Rita GilFDUNL, 6 November 2013

I – IntroductionI – Introduction

Aliens, Aliens, ForeignersForeigners……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 MigrantsCathegories of Migrants Voluntary Migration vs. Forced Migration

- Refugees

- Subsidiary Protection

- Temporary ProtectionImmigration Asylum

Who are the national Who are the national Citizens?Citizens?

State SovereignityState Sovereignity◦ Portugal: Organic Law n. 2/2006 of 17th April

Systems:Systems:

- Birth Acquisition:- ius soli vs. ius sanguinisius soli vs. ius sanguinis

- Acquisition after birth: . naturalisation. naturalisation . family acquisition. family acquisition

II – Do Aliens have II – Do Aliens have rights?rights?

1º - Public 1º - Public International Law International Law answers answers

International Human International Human Rights InstrumentsRights Instruments

-Lex Generalis- Lex Specialis

- Universal Declaration of Human Rights - Universal Declaration of Human Rights

- International Covenant on Civil and Political - International Covenant on Civil and Political RightsRights

- Convention on the Rights of the Child- Convention on the Rights of the Child

- European Convention on Human Rights - European Convention on Human Rights

- Charter of Fundamental Rights of the EU - Charter of Fundamental Rights of the EU

Lex Generalis:

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 Exceptions Political RightsRights connected to the territorySocial, 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. (expulsion procedure) - Art. 12., n.1 (right to liberty of movement)

ECHR :Exceptions: Art. 1 of Additional Protocolo n. 7 (guarantees of the expulsion procedure )Art. 2 of Additional Protocol n. 4 (right of free movement)

• EU CFR– rights of the Human Being vs. rights of the resident

- - Declaration on the Human Rights of Individuals Who Are Declaration on the Human Rights of Individuals Who Are Not Nationals of the Country in Which They Live Not Nationals of the Country in Which They Live (1985) (1985)

- - United Nations Convention on the Protection of the United Nations Convention on the Protection of the Rights of All Migrant Workers and Members of Their Rights of All Migrant Workers and Members of Their Families Families (1990) (1990)

- - Conventions n. 97 (1949) and 143 (1979) of the ILO on Conventions n. 97 (1949) and 143 (1979) of the ILO on Migrant WorkersMigrant Workers

- European Social Charter- European Social Charter

- European Convention on the legal status of the Migrant - European Convention on the legal status of the Migrant Worker (1977)Worker (1977)

Lex Specialis:

Does International Law Does International Law prohibit discrimination prohibit discrimination on the grounds of on the grounds of Nationality? Nationality?

Non-discrimination on the Non-discrimination on the grounds of nationalitygrounds of nationality

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. 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. 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.

To sum up: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 non-legal immigrants

Non-discrimination on the Non-discrimination on the grounds of nationalitygrounds of nationality

Discrimination regarding Discrimination regarding some categories of Alienssome categories of AliensRegarding 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 II – Answers of the Portuguese Portuguese ConstitutionConstitution

Principle of the Dignity of the Human Person (art. 1)

Principle of the Universality (art. 12)

Principle of the Equality (art. 13 e 59)

General Principles

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

Principle of Assimilation

Encompasses– all the rightsAliens – who are present or who reside in Portugal- regardless of legal status

Exceptions (n.2):1. political rights / public service2. exceptions foreseen in other constitutional norms3. exceptions foreseen in the law (considered as a restrictive law)