Discrimination on the grounds of Nationality

Discrimination on the grounds of Nationality Ana Rita Gil FDUNL, 13 November 2013

Rights on Immigration Context

Rights on ExpulsionProcedures • Prohibition of Collective Expulsions • Art. 4 of the 4th additional Protocol to the ECHR • Art. 19, n.1 of the EU CFR

Rights on ExpulsionProcedures • Procedural Guarantees in case of expulsion • Art. 13 of the ICCPR & Art. 1 of the 7th additional Protocolo 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 AutomaticExpulsion (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 legallystaying aliens– purelyadministrative - 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 applicableifnecessary for avoidingunlawful entry or when an expulsionprocedure is in course 4. Alternative measures 5. Procedural guarantees 6. Reasonable lenght + periodicallyreviwed 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

Recognition of a right to Immigration?

There is no Right to Immigration Right of entry in 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 protection againstexpulsions Prohibition of Expulsions– only for national citizens Art. 3, n.1 of the 4th AdditionalProtocol 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 – nationalsovereignty:- Impact of the immigration on the concept of “State”- Impact of the immigration on the interests of the State

Regularization of illegallystaying aliens

Reasons For • Acquisition, by virtue of time, a “right to reside” – adverse possession • End to Exploitation situations • More advantages to the society ReasonsAgainst • “Call efect” • Lost of Borders control • More advantages to the society

Protection of Family and PrivateLife Reasons to consider(ECHR, Boultif, 2001 e Üner, 2006): Legal status of the Alien in the host country; Nature and seriousness of the crime committed; Time elapsed since the commission of the crime, and the alien’s behaviour since then; Existing connections with the host country; Existing connections with the country of origin; Nationality / legal status of the family members; Children involved, their age and socialization in the host country;

Right to Cultural Identity

ControversialQuestions:- religioussymbols- violation of the physicalintegrity- 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) ReasonsAgainst • Fundamental principles of the host country • “Full integration”

Main Principle- balance between:1. cultural identity of the immigrant2. fundamental values of the hostcommunityAdvocacy of the Intercultural Dialogue

Discrimination on the grounds of Nationality