Discrimination Discrimination on the grounds on the grounds
of nationalityof nationality
Ana Rita GilFDUNL, 20th March 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 Rights
Rights connected to the territory
Social, Economic and Cultural RightsDeveloping 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.
National origin ≠ Nationality
- …Other status
-Human Rights Committee– Gueye c. França, 1989
-ECHR- Gaygusuz c. Áustria, 1996
Non-discrimination on the Non-discrimination on the grounds of nationalitygrounds of nationality
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 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 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)
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