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

I – Introduction

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)

Cathegories of Migrants Voluntary Migration vs. Forced Migration - Refugees - Subsidiary Protection - Temporary Protection ImmigrationAsylum

Who are the national Citizens? State Sovereignity State Sovereignity ◦ Portugal: Organic Law n. 2/2006 of 17th April Systems: Systems: -Birth Acquisition: - ius soli vs. ius sanguinis - Acquisition after birth:. naturalisation. naturalisation. family acquisition. family acquisition

II – Do Aliens have rights?

1º - Public International Law answers

International Human Rights Instruments - Lex Generalis - Lex Specialis

- 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 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 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)

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 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) Lex Specialis :

Does International Law prohibit discrimination on the grounds of Nationality?

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.

National origin ≠ Nationality - …Other status -Human Rights Committee– Gueye c. França, ECHR- Gaygusuz c. Áustria, 1996 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 Broader margin of appreciation regarding non- legal immigrants Non-discrimination on the grounds of nationality

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

II – Answers of the Portuguese Constitution

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

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)