Discrimination Discrimination on the grounds on the grounds

of of Nationality Nationality

Ana Rita GilFDUNL, 13 November 2013

Rights on Rights on Immigration Immigration ContextContext

Rights on Expulsion Rights on Expulsion ProceduresProcedures

Prohibition of Collective Expulsions

◦Art. 4 of the 4th additional Protocol to the ECHR

◦Art. 19, n.1 of the EU CFR

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)

Rights on Expulsion Rights on Expulsion ProceduresProcedures

Portuguese ConstitutionPortuguese 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 ImmigrantsDetention of Immigrants

Art. 9 ICCPR and Art. 5, n.1, al. f) ECHR

1. Lawful

2. Fair and not impredictable3. Only applicable if necessary for avoiding unlawful

entry or when an expulsion procedure is in course4. Alternative measures5. Procedural guarantees6. Reasonable lenght + periodically reviwed7. Legal, humanitarian and social aid8. Adequate conditions

Detention of Immigrants Detention of Immigrants (Portugal)(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 Recognition of a right to right to

Immigration?Immigration?

There is no Right to There is no Right to ImmigrationImmigration

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 returnthereto”

TC – it is only applicable to national citizens(ruling. 359/93)

The recognition of a Right The recognition of a Right to Emigrationto 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 There is no protection against protection against expulsionsexpulsions

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”.

ratioratio – national sovereignty: – national sovereignty:

- Impact of the immigration on the - Impact of the immigration on the concept of “State”concept of “State”

- Impact of the immigration on the - Impact of the immigration on the interests of the State interests of the State

Regularization of Regularization of illegally staying illegally staying

aliensaliens

Reasons ForReasons For- Acquisition, by virtue of time, a “right to reside” – adverse possession

-End to Exploitation situations

-More advantages to the society

Reasons AgainstReasons Against- “Call efect”

- Lost of Borders control

-More advantages to the society

Protection of Family and Protection of Family and Private LifePrivate LifeReasons 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 Right to Cultural IdentityIdentity

Controversial Controversial Questions:Questions:

- religious symbols

- violation of the physical integrity

- concept of family

Reasons ForReasons 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 AgainstReasons Against- Fundamental principles of the host country

-“Full integration”

Main PrincipleMain Principle- balance between:

1. cultural identity of the immigrant

2. fundamental values of the host community

Advocacy of the Intercultural Dialogue