Download O Direito à Unidade Familiar do Imigrante

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
Immigration
Asylum
Who are the national Citizens?

State Sovereignity
◦ Portugal: Organic Law n. 2/2006 of 17th April

Systems:
- Birth Acquisition:
- ius soli vs. ius sanguinis
- Acquisition after birth:
. naturalisation
. family acquisition
II – Do Aliens have rights?
1º - Public International
Law answers
International Human Rights
Instruments
-Lex Generalis
- Lex Specialis
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?
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
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)
Does International Law prohibit
discrimination on the grounds
of Nationality?
Non-discrimination on the grounds of
nationality
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. 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. 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.
Non-discrimination on the grounds
of nationality

National origin ≠ Nationality
- …Other status
-Human Rights Committee– Gueye c. França, 1989
-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 nonlegal immigrants
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 - AnakombaYula c. Bélgica, 2009
II – Answers of the
Portuguese Constitution
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)
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.
(…)
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)