Discrimination Discrimination on the grounds on the grounds

of of Nationality Nationality

Ana Rita GilFDUNL, 20th March 2013

Rights on Rights on Immigration Immigration ContextContext

Rights on Expulsion Rights on Expulsion ProceduresProcedures

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 Protocolo 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)

Rights on Expulsion Rights on Expulsion ProceduresProcedures

Portuguese ConstitutionPortuguese Constitution

- Prohibition of Automatic Expulsion (Art. 30, n.4) – Ruling n. 359/93

- Procedural Rights (Art. 33, n.2)1. (…)

2. Expulsion of those who have legally entered or legally remained in Portuguese territory, who have been granted a residence permit or have submitted a request for asylum that has not been refused, may only be ordered by a judicial authority. The law shall assure expedite forms of decision in such cases.

Expulsion of non legally staying aliens– purely administrative - possibility of review, but the effects of the decision will not be suspended (Art. 150. of the Immigration Law)

Detention of ImmigrantsDetention of Immigrants

Art. 9 ICCPR and Art. 5, n.1, al. f) ECHR

1. Lawful

2. Fair and not impredictable3. Only applicable if necessary for avoiding unlawful

entry or when an expulsion procedure is in course4. Alternative measures5. Procedural guarantees6. Reasonable lenght + periodically reviwed7. Legal, humanitarian and social aid8. Adequate conditions

Detention of Immigrants Detention of Immigrants (Portugal)(Portugal)

Portuguese Constitution: Art. 27, n. 3: allows imprisonment or detention of, or the

imposition of any other coercive measure subject to judicial control on, a person who has unlawfully entered into or remains unlawfully in Portuguese territory, or who is being subject to extradition or deportation proceedings.

Immigration Law: Art. 146.- 48h – present to the judicial authority

- maximum lenght - 60 days- asylum seekers

Right to Right to Immigration?Immigration?

There is no Right to There is no Right to ImmigrationImmigration

Right of entry in 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.”

Art. 44., n. 2 of the Portuguese Constitution: “Every citizen is guaranteed the right to emigrate or to leave Portuguese territory and the right to returnthereto”

TC – it is only applicable to national citizens(ruling. 359/93)

The recognition of a Right The recognition of a Right to Emigrationto 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 There is no protection against protection against expulsionsexpulsions

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”

Art. 33 of the Portuguese Constitution: “The deportation of Portuguese citizens from Portuguese territory is not allowed”.

ratioratio – national sovereignty: – national sovereignty:

- Impact of the immigration on the - Impact of the immigration on the concept of “State”concept of “State”

- Impact of the immigration on the - Impact of the immigration on the interests of the State interests of the State

Current solution: Current solution:

the compromise the compromise

Sovereignty – Human Rights Sovereignty – Human Rights

Common situations:Common situations:

-Prohibition of torture, inhuman or degrading treatment or punishment

- Right to respect for private and family life

Some Some controversial controversial questionsquestions

Regularisation of illegally Regularisation of illegally stauing immigrants?stauing immigrants?

Rights of the Immigrants Rights of the Immigrants to follow their culture and to follow their culture and religionreligion