1. Immigration Law Alessia Matonti

2. What is sovereignty? WhW
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3. AND DOMESTIC JURISDICTION AND DOMESTIC JURISDICTION
STATE SOVEREIGNTY
AND DOMESTIC JURISDICTION
STATE SOVEREIGNTY
AND DOMESTIC JURISDICTION
A STATE POSSESES PRIMARY AUTHORITY OVER ITS TERRITORY AND POPULATION
UN Charter, Article 2(7)
“Nothing contained in the present Charter shall
authorize the United Nations to intervene in
matters which are essentially within the domestic
jurisdiction of any state or shall require the
Members to submit such matters to settlement
under the present Charter”

4. STATE SOVEREIGNTY AS AN ABSOLUTE POWER
sovereign right to control the entry and continued presence of non-nationals in State territory
States can:
- admit non-nationals within their territories
- expel non-nationals from their territories

5. STATE SOVEREIGNTY AS A LIMITED POWER
State powers and domestic jurisdiction are limited by international law
General international law and applicable international agreements impose obligations on States

6. Freedom of movement is a human right?
WhW
Freedom of movement is a human right?
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7. UNIVERSAL INSTRUMENTS
FREEDOM OF MOVEMENT:
LEGAL FRAMEWORK
UNIVERSAL INSTRUMENTS
Articles 12 and 13 International Covenant on Civil and Political Rights (1966)
Art. 5 International Convention on the Elimination of All Forms of Racial Discrimination (1965)
Art. 10 Convention on the Rights of the Child (1989)
Art. 39 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990)
REGIONAL INSTRUMENTS
Articles 2, 3 and 4 Protocol No. 4 to the ECHR (1963) and Art. 1 Protocol No. 7 to the ECHR (1984)
Art. 22 American Convention on Human Rights (1969)
Art. 12 African Charter on Human and Peoples’ Rights (1981)
Articles Arab Charter on Human Rights (2004)

8. FREEDOM OF MOVEMENT:
THE CONTENT
NATIONALS  right to enter/return to their own country and cannot be expelled
EVERYBODY  right to leave any country, including his own
WHO IS LAWFULLY ON THE TERRITORY  right to move freely and to choose his residence, but can be expelled following the adoption of specific procedural safeguards

9. ALIENS INSTEAD DO NOT ENJOY THE RIGHT TO ENTRY IN ANOTHER COUNTRY
ASYMMETRY
RIGHT TO ENTER
Absolute right
RIGHT TO LEAVE
admits restrictions
(only for nationals)
ALIENS INSTEAD DO NOT ENJOY THE RIGHT TO ENTRY IN ANOTHER COUNTRY

10. EXCEPTION: Art. 12(4) ICCPR
“No one shall be arbitrarily deprived of the right to enter his own country”
Broad interpretation given by the HRC:
Nationals
Permanent/long-term residents
Stateless persons
(HRC, General Comment No. 27, 1999, §§ 19-20)

11. ADMISSION OF MIGRANTS
Wide discretion recognized to States, limited only by the principle of non discrimination and by international rules
Conditions on the admission/granting of visas:
- quota (number of persons admitted each year);
- employment based categories (investors, skilled workers, seasonal workers) and qualifications requested;
- length of stay: short residents (students, tourists) or permanent residents (workers and their family members)

12. EXCLUSIONARY GROUNDS
Disease (above all dangerous contagious diseases) or ill health
National security-related concerns (alleged terrorists)
Criminal history (need to protect public order)
Lack of economic means of subsistence (fear of excessive demands on health and social services)

13. COLLECTIVE EXPULSIONS
RESTRICTIONS
TO STATES’ DISCRETION
PRINCIPLE OF
NON-REFOULEMENT
PROHIBITION OF
COLLECTIVE EXPULSIONS
customary rules of international law ?

14. NON-REFOULEMENT: DEFINITION
Article 33(1) of the Convention Relating to the Status of Refugees (1951)
Prohibition of expulsion or return (“refoulement”)
“No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”

15. No reservation or derogation to Art. 33 is permitted
NON-REFOULEMENT:
DEFINITION
Article 33 of the Convention Relating to the Status of Refugees (1951)
Prohibition of expulsion or return (“refoulement”)
NOT ABSOLUTE
Removal is allowed in very exceptional circumstances, when the person is:
A danger to the State security
A danger to the State community, for having committed a serious crime
Art. 33(2)
BUT NON-DEROGABLE
No reservation or derogation to Art. 33 is permitted
Art. 42

16. NON-REFOULEMENT: DEFINITION
Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984)
“No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture”

17. NON-REFOULEMENT: SOME DEFINITIONS
Article 19(2) of the Charter of Fundamental Rights of the European Union (2000)
Protection in the event of removal, expulsion or extradition
“No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment”

18. NON-REFOULEMENT: SOME DEFINITIONS
Article 22(8) of the American Convention on human rights (1969)
“In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.”

19. INDIRECT PROTECTION UNIVERSAL INSTRUMENTS REGIONAL INSTRUMENTS
Articles 6 and 7 of the International Covenant on Civil and Political Rights (1966)
REGIONAL INSTRUMENTS
Articles 2 and 3 of the European Convention on human rights (1950)
N.B.: UNDER ITERNATIONAL HUMAN RIGHTS LAW, NO EXCEPTION IS PERMITTED

20. NON-REFOULEMENT: IN PRACTICE
REFUGEES/ASYLUM SEEKERS has a “de facto” right to enter
STATES have the corresponding obligation to:
- grant access to the territory and to a fair and efficient procedure for the recognition of international protection
provide adequate information and assistance
carry out an individual, objective and impartial assessment of each case
allow the stay on the territory until the examination of the application has been completed

21. Collective expulsion? WhW
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22. COLLECTIVE EXPULSIONS: “Collective expulsion of aliens is prohibited”
LEGAL FRAMEWORK
“Collective expulsion of aliens is prohibited”
(Art. 4P4 ECHR, Art. 22(9) ACHR, Art. 26(2) Arab Charter)
ABSOLUTE
No restrictions/limitations are provided for
NON-DEROGABLE ?
No reservation or derogation

23. COLLECTIVE EXPULSIONS:
DEFINITION
Article 2 of Draft articles on the expulsion of aliens (2014)
“expulsion means a formal act or conduct attributable to a State by which an alien is compelled to leave the territory of that State;
it does not include extradition to another State,
surrender to an international criminal court or tribunal,
or the non-admission of an alien to a State”

24. COLLECTIVE EXPULSIONS:
DEFINITION
Article 9(3) of Draft articles on the expulsion of aliens (2014)
Prohibition of collective expulsion
“A State may expel concomitantly the members of a group of aliens, provided that the expulsion takes place after and on the basis of an assessment of the particular case of each individual member of the group in accordance with the present draft articles”

25. COLLECTIVE EXPULSIONS: ESSENTIALLY PROCEDURAL GUARANTEE
ECtHR DEFINITION
“Any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group”
ESSENTIALLY PROCEDURAL GUARANTEE

26. COLLECTIVE EXPULSIONS: THE TWO NOTIONS NOT NECESSARLY OVERLAP
DEFINITION
Article 12(5) of the African Charter on Human and Peoples’ rights (1981)
“The mass expulsion of non-nationals shall be prohibited. Mass expulsion shall be that
which is aimed at national, racial, ethnic or religious groups”
THE TWO NOTIONS NOT NECESSARLY OVERLAP

27. RELEVANT ECtHR CASE-LAW
Čonka v. Belgium, judgment of 5 February 2002
Roma people from Slovakia seeking for asylum in Belgium
arbitrarily arrested and removed to Slovakia
violation of Art. 4 of Protocol No. 4, because of the lack of
“sufficient guarantees demonstrating that the personal circumstances of each of those concerned had been genuinely and individually taken into account”
violation of Article 5 §§ 1 and 4 ECHR and of Article 13 ECHR taken in conjunction with Article 4 of Protocol No. 4

28. RELEVANT ECtHR CASE-LAW
Georgia v. Russia (I), judgment of 3 July 2014
Inter-state case
administrative practice of arrest, detention and collective expulsion of Georgian nationals from the Russian Federation in the autumn of 2006.
violation of Article 4 of Protocol No. 4, because:
Even though a court decision had been made in respect of each Georgian national, the conduct of the expulsion procedures during that period, the issue of circulars and instructions and the high number of Georgian nationals expelled – from October 2006 – had made it impossible to carry out a reasonable and objective examination of the particular case of each individual

29. RELEVANT ECtHR CASE-LAW
Hirsi Jamaa and Others v. Italy [GC], judgment of 23 February 2012
Somalian and Eritrean migrants travelling from Libya
intercepted at sea by the Italian authorities and sent back to Libya
Italian Jurisdiction?
“in the period between boarding the ships and being handed over to the Libyan authorities, the applicants had been under the continuous and exclusive de jure and de facto control of the Italian authorities”
violation of Art. 3, Art. 4 of Protocol No. 4 and Art. 13 ECHR taken in conjunction with Art. 3 and Art. 4 of Protocol No. 4

30. RELEVANT ECtHR CASE-LAW
Khlaifia and Others v. Italy, judgment of the Chamber of 1 September 2015
3 Tunisians arrived in Italy in 2011 after “Arab Spring”
detained in a reception center on Lampedusa and on ships moored in Palermo
repatriated to Tunisia after a simplified identification procedure in accordance with the agreement between Italy and Tunisia of 5 aprile 2011
the Chamber found a violation of: Art. 5 §§ 1, 2 and 4, Art. 3, Art. 4 of Protocol No. 4, Art. 13 ECHR taken in conjunction with Articles 3 and 4 of Protocol No. 4

31. RELEVANT ECtHR CASE-LAW
Khlaifia and Others v. Italy [GC], judgment of 15 December 2016
the Grand Chamber overturned the Chamber judgment as to the violation of Art. 4 of Protocol No. 4 and Art. 3 ECHR
According to the GC:
Article 4 of Protocol No. 4 did not guarantee the right to an individual interview in all circumstances. The requirements of that provision were satisfied where each alien had the possibility of raising arguments against his or her expulsion and where those arguments had been examined by the authorities of the respondent State
MIGRATION CRISIS MAY JUSTIFY A DEROGATION TO ART. 4P4?

32. IN LINE WITH GENERAL PRACTICE?
STATE PRACTICE
OTHER HR BODIES
Readmission agreements
Wider protection:
- Right to be heard
Right to review
Right to legal assistance
(ACtHR – Expelled Dominicans and Haitians v. Dominican Republic)

33. RELEVANT ECtHR CASE-LAW
N.D. v. Spain and N.T. v. Spain, judgment of 3 October 2017
sub-Saharan migrants who attempted on 13 August 2014 to enter Spanish territory illegally by scaling the barriers which surround Melilla

34. RELEVANT ECtHR CASE-LAW
N.D. v. Spain and N.T. v. Spain, judgment of 3 October 2017
Jurisdiction?
«à partir du moment où les requérants étaient descendus des clôtures frontalières, ils se trouvaient sous le contrôle continu et exclusif, au moins de facto, des autorités espagnoles»
violation of Art. 4 of Protocol No. 4 and Art. 13 ECHR
Case referred to the Grand Chamber in January 2018…
ANOTHER KHLAIFIA?

35. RELEVANT ECtHR CASE-LAW
W.A. and Others v. Italy
Communicated on 24 November 2017
5 Sudanese nationals
Arrested in Ventimiglia, transferred to Turin and forcibly repatriated to Sudan in August 2016
Readmission agreement between Italy and Sudan
Articles allegedly violated: Art. 3, Art. 4 of Protocol No. 4, Art. 13 and Art 14 ECHR.

36. TO SUM UP…
“While every State has the right to establish their own immigration policy, problems with managing migrations flows could not justify practices incompatible with the State’s obligations under the Convention”
(ECtHR case-law)