Recognition of a right to Immigration?

There is no Right to Immigration Right of entry into 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. ”

The recognition of a Right to 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 absolute protection against expulsions 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”

ratio – national sovereignty: - Impact of the immigration on the concept of “State” - Impact of the immigration on the interests of the State

Current solution: the compromise Sovereignty – Human Rights Forced Migration Voluntary Migration

Forced Migration - Right to Asylum Geneva Convention / Article 14 UDHR Right to search for asylum Right to non refoulement

- Refugees (Asylum) Entry - Subsidiary Protection Entry - Resettlement No Expulsion - Non Refoulement No Expulsion Asylum

Voluntary Migration – Protection under other Human Rights Most common situations: - Prohibition of expulsion in case of torture, inhuman or degrading treatment or punishment. - Protection of Family and Private Life

Prohibition of expulsion in case of torture or inhuman or degrading treatment or punishment Encompasses: ◦ torture or inhuman or degrading treatment or punishment ◦ Risk of persecution (of the State of other actors) ◦ Serious illness (exceptionally) (TEDH, D. v. United Kigdom, 1997) ◦ Impossibility to travel due to physical condition

Protection of Family and Private Life Encompasses: ◦ Right to family reunification ◦ Right to not be expelled from the country

Protection of Family and Private Life Reasons 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;

Rights in the Immigration Context

Rights on Expulsion Procedures 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 Protocol 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) except in case of Article 2 and 3 Rights on Expulsion Procedures

Detention of Immigrants Art. 9 ICCPR and Art. 5, n.1, al. f) ECHR 1. Lawful 2. Fair and not impredictable 3. Only applicable if necessary for avoiding unlawful entry or when an expulsion procedure is in course 4. Alternative measures 5. Procedural guarantees 6. Reasonable lenght + periodically reviwed 7. Legal, humanitarian and social aid 8. Adequate conditions