Discrimination on the grounds of nationality

1. Discrimination on the grounds of nationality Ana Rita Gil FDUNL, 20th March 2013

2. I – Introduction

3. 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)

4. Cathegories of Migrants • Voluntary Migration vs. Forced Migration - Refugees - Subsidiary Protection - Temporary Protection Immigration Asylum

5. Who are the national Citizens? • State Sovereignity • Portugal: Organic Law n. 2/2006 of 17th April • Systems: • BirthAcquisition: • ius soli vs. ius sanguinis - Acquisitionafterbirth: . naturalisation . familyacquisition

6. II – Do Aliens have rights?

7. 1º - Public International Law answers

8. International Human Rights Instruments • Lex Generalis • Lex Specialis

9. Lex Generalis: - 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?

10. 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

11. 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)

12. Irrelevance of the legal status • ICCPR : Exception – Art. 13. (expulsionprocedure) - Art. 12., n.1 (right to liberty of movement) • ECHR : Exceptions: Art. 1 of Additional Protocolo n. 7 (guarantees of the expulsionprocedure ) Art. 2 of AdditionalProtocol n. 4 (right of free movement) • EU CFR– rights of the Human Being vs. rights of the resident

13. Lex Specialis: - 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)

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

15. Non-discrimination on the grounds 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.

16. Non-discrimination on the grounds of nationality • National origin ≠ Nationality • …Other status • Human Rights Committee– Gueye c. França, 1989 • ECHR- Gaygusuz c. Áustria, 1996

17. 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 • Broadermargin of appreciationregarding non-legal immigrants

18. 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

19. II – Answers of the Portuguese Constitution

20. 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)

21. 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. • (…)

22. 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)