PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation DISCRIMINATION AGAINST NON-CITIZENS The international human rights treaties guarantee rights to “everyone”, without regard to citizenship, in keeping with the global commitment that all persons are born equal in dignity and in rights. The Human Rights Committee has noted that all of the rights of the International Covenant on Civil and Political Rights must be guaranteed without discrimination between citizens and non-citizens and has emphasized that non-citizens benefit from the provisions of article 2 of the Covenant.164 In its consideration of several individual complaints, the Committee has further held that the prohibition of discrimination in article 26 of the Covenant includes differentiation between nationals and non-nationals.165 Similarly, the Committee on Economic, Social and Cultural Rights has stated that nationality is a protected ground falling within “other status” in article 2 (2) of the International Covenant on Economic, Social and Cultural Rights. It has also emphasized that the rights protected by the Covenant “apply to everyone including non-nationals, such as refugees, asylum-seekers, stateless persons, migrant workers and victims of international trafficking, regardless of legal status and documentation”.166 The Committee on the Elimination of Racial Discrimination has explored in detail the measures required of States to ensure that non-citizens are not subjected to any form of discrimination. These include the general principles that: (a) the “legal provisions of States parties must not discriminate against any particular nationality”; (b) international law “must be construed so as to avoid undermining the basic prohibition of discrimination”; (c) States have positive obligations to “prohibit and eliminate racial discrimination in the enjoyment of civil, political, economic, social and cultural rights. … States parties are under an obligation to guarantee equality between citizens and non-citizens in the enjoyment of these rights to the extent recognized under international law”; and (d) any “differential treatment based on citizenship or immigration status will constitute discrimination if the criteria for such differentiation … are not applied pursuant to a legitimate aim, and are not proportional to the achievement of this aim”.167 Tribunals such as the European Court of Human Rights have deemed States in violation of the ban on discrimination in cases concerning, for example, the exclusion of foreign nationals from unemployment benefits or requiring non-nationals without permanent residence to pay secondary school fees.168 The Court has also held States to be in violation of the ban on racial discrimination in citizenship procedures.169 In cases concerning the collective expulsion of aliens, the Court has held States to an even more stringent standard of proof than in other cases of discrimination.170 It flows from the above that in most – if not all – areas of economic, social and cultural life, discrimination on the basis of nationality is banned on the same basis as any other ground of discrimination. Compliance with international human rights law requires that, in situations in which exceptions relating to nationality are included in national law, they must be narrowly defined. Moreover, it stems from the general prohibition of discrimination that non-nationals should also be afforded protection from discrimination in areas including immigration, deportation, citizenship and other aspects of border control on the basis of all other protected characteristics, including (but not limited to) sex, sexual orientation, gender identity, disability or – as noted by the Committee on the Elimination of Racial Discrimination in its general recommendation No. 30 (2004) – race, colour, descent, national or ethnic origin.171 24 164 Human Rights Committee, general comment No. 15 (1986), para. 2. 165 See, for instance, Human Rights Committee, Gueye et al. v. France, communication No. 1966/1983; Adam v. Czech Republic, communication No. 586/1994; and Karakurt v. Austria, communication No. 965/2000. 166 Committee on Economic, Social and Cultural Rights, general comment No. 20 (2009), para. 30. 167 Committee on the Elimination of Racial Discrimination, general recommendation No. 30 (2004), paras. 1–4. 168 European Court of Human Rights, Gaygusuz v. Austria, Application No. 17371/90, Judgment, 16 September 1996; and Ponomaryovi v. Bulgaria, Application No. 5335/05, Judgment, 21 June 2011. 169 European Court of Human Rights, Biao v. Denmark, Application No. 38590/10, Judgment, 24 May 2016. See also European Commission of Human Rights, East African Asians v. the United Kingdom, Application Nos. 4403/70-4419/70 and others, Report, 14 December 1973. 170 “The Court considers that the procedure followed does not enable it to eliminate all doubt that the expulsion might have been collective.” European Court of Human Rights, Čonka v. Belgium, Application No. 51564/99, Judgment, 5 February 2002, para. 61. 171 See, in the context of immigration, Committee on the Elimination of Racial Discrimination, general recommendation No. 30 (2004), para. 9.