1. Discrimination on the grounds of nationality
Migrações - As esquecidas pelos Direitos Humanos?
Discrimination on the grounds of nationality
Ana Rita Gil
FDUNL, 6 November 2013
Ana Rita Gil - Faculdade de Direito da Universidade Nova de Lisboa

2. I – Introduction

3. 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)

4. Cathegories of Migrants
Voluntary Migration vs. Forced Migration
- Refugees
- Subsidiary Protection
- Temporary Protection
Immigration
Asylum

5. 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

6. II – Do Aliens have rights?

7. 1º - Public International Law answers

8. International Human Rights Instruments
Lex Generalis
Lex Specialis

9. Are they applicable to Aliens?
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?

10. 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

11. 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)

12. 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

13. 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)

14. Does International Law prohibit discrimination on the grounds of Nationality?

15. 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.

16. 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

17. 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

18. II – Answers of the Portuguese Constitution

19. 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)

20. Artigo 15. (Foreigners, stateless persons, European citizens)
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.
(…)

21. 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)