The Right of an Alien to Be Protected Against Arbitrary Expulsion in International Law [1 ed.] 9789004265448, 9789004265431

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The Right of an Alien to be Protected against Arbitrary Expulsion in International Law

The Right of an Alien to be Protected against Arbitrary Expulsion in International Law By

Julia Wojnowska-Radzińska

leiden | boston

Library of Congress Cataloging-in-Publication Data Wojnowska-Radzińska, Julia, author. The right of an alien to be protected against arbitrary expulsion in international law / By Julia Wojnowska-Radzińska. pages cm Includes bibliographical references and index. ISBN 978-90-04-26543-1 (hardback : alk. paper) -- ISBN 978-90-04-26544-8 (e-book) 1. Deportation. 2. Extradition. 3. Aliens. 4. Human rights. 5. International law. I. Title. K3277.W65 2015 342.08’2--dc23

2014048662

This publication has been typeset in the multilingual “Brill” typeface. With over 5,100 characters covering Latin, IPA, Greek, and Cyrillic, this typeface is especially suitable for use in the humanities. For more information, please see www.brill.com/brill-typeface. issn 978-90-04-26543-1 (hardback) issn 978-90-04-26544-8 (e-book) Copyright 2015 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill nv incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi and Hotei Publishing. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, usa. Fees are subject to change. This book is printed on acid-free paper.

Contents Preface IX List of Abbreviations X Introduction XI 1 Categories of Aliens and Types of Expulsion 1 1 Introduction 1 2 The Notion of an Alien 1 2.1 Long-Term Immigrants 3 2.2 Migrant Workers 7 2.3 Refugees 9 2.4 Stateless Persons 11 2.5 Eu Citizens 12 3 The Notion of Expulsion 16 3.1 Individual Expulsion 16 3.2 Collective Expulsion 17 4 Lawful Residence Versus the Expulsion of an Alien 20 2 The Concept and the Development of the Right of an Alien Lawfully in the Territory of a State to be Protected against Arbitrary Expulsion 23 1 Historical Background 23 1.1 The Evolution of the Protection of an Alien Against Arbitrary Expulsion 23 1.2 The Development of the Right of an Alien to be Protected against Arbitrary Expulsion in 19th and 20th Centuries 26 1.3 International Human Rights Law and its Influence on Codification of the Right of an Alien to be Protected against Arbitrary Expulsion 31 2 The Notion of the Right of an Alien to be Protected against Arbitrary Expulsion 37 3 The Scope of Protection against Arbitrary Expulsion from a State of Legal Residence under International Human Rights Law 41 1 Introduction 41 2 The Right of an Alien to Respect for Private and Family Life 45 2.1 Introduction 45 2.2 The Protection of Private and Family Life of an Alien under Article 17 of the iccpr 47

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2.3 The Protection of Private and Family Life of an Alien under Article 8 of the echr 52 2.3.1 The Right of an Alien to Respect for Family Life 52 2.3.2 The Right of an Alien to Respect for Private Life 56 2.3.3 The Extent of Permissible Interference with Family and Private Life under Article 8 of the echr 60 2.3.4 Criminal Activity of Integrated Immigrants as a Basis to Revoke the Protection Guaranteed under Article 8 of the echr 62 2.3.4.1 Introduction 62 2.3.4.2  Dissenting Opinions of the Judges of the ECtHR on Balancing Family Life against Expulsion on Grounds of Criminality 64 2.3.4.3  Changes in the European Court’s Approach to Integrated Aliens 69 2.3.4.4  Protection of Integrated Immigrants – Concluding Remarks 78 3 Prohibition against Expelling an Individual from his own Country 80 4 The Principle of Non-Discrimination 84 5 The Principle of Non-Refoulement 92 5.1 Introduction 92 5.2 Protection of Expelled Aliens under Article 33 of the Convention Relating to the Status of Refugees (Prohibition against Exposing Human Life or Freedom to Danger) 95 5.3 Protection of Expelled Aliens under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Prohibition of Torture) 98 5.4 Protection of Expelled Aliens under Article 7 of the iccpr (Prohibition of Torture or Cruel, Inhuman Treatment or Punishment) 101 5.5 Protection of Expelled Aliens under Article 3 of the echr (Prohibition of Torture or Inhuman, Degrading Treatment or Punishment) 104 5.6 Controversy Concerning the Application of Non-Refoulement Principle 108 6 Conclusion 112 4 Procedural Measures and Guarantees to Which an Alien is Entitled To 114 1 Introduction 114 2 Legal Requirements of the Expulsion Decision 115

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3 Right to Receive Notice of Expulsion Proceedings 119 4 Right to Submit Reasons against Expulsion 122 5 Right to Appeal to a Competent Authority to Have the Case Reviewed 127 6 Right to a Counsel 135 7 Grounds for Revoking Procedural Guarantees 136 8 Right to an Effective Remedy 140 9 Procedural Guarantees for EU Citizens in the Light of Directive 2004/38/ec 151 10 Diplomatic Protection 155 11 Conclusion 161 5 Polish Approach to Protection against Arbitrary Expulsion 163 1 Introduction 163 2 General Rules Governing the Protection of Aliens against Arbitrary Expulsion 164 2.1 Introduction 164 2.2 Procedural Safeguards 167 3 Respect for Private and Family Life as Grounds Precluding Arbitrary Expulsion under Polish Law 178 4 Conclusion 182 6 Responsibility of a State for Violating the Right of an Alien to be Protected against Arbitrary Expulsion 184 1 Introduction 184 2 Responsibility of a State for Arbitrary Expulsion in International Law 185 3 Reparation for Arbitrary Expulsion of an Alien 190 3.1 Types of Reparation 193 3.1.1 Restitution 193 3.1.2 Compensation 194 3.1.3 Satisfaction 196 4 Conclusion 197 Conclusion 198 Bibliography 203 Index 224

Preface While no State may expel its nationals, it is the sovereign prerogative of States to regulate the presence of foreigners in their territory. This power is not unlimited and international human rights law places some restrictions on when and how to exercise it. The purpose of the book, therefore, is to identify those restrictions and provide an up-to-date overview and analysis of the generally accepted principles of current international law relating to the protection of aliens against arbitrary expulsion. The problem of arbitrary expulsion has been sharply emphasized after 11 September 2001 as a reaction of States to combat terrorism which until then had been an remote threat for Western societies. In the aftermath of the attacks there has been a change in the way aliens are perceived. No longer are they treated with trust and impartiality. This has led to an increasing tendency to expel aliens without observing fundamental human rights norms. The subject area presented has not yet been thoroughly analysed in international legal doctrine. There is no monograph regarding arbitrary expulsion that embraces the adopted international legal instruments, international case law and indicate up-to-date problems. Therefore, it is necessary to analyse that question from the perspective of human rights under international law. This book describes the status of resident aliens, the international legal obligations of States for the protection of lawfully residing aliens against arbitrary expulsion and provides practical information on administrative proceedings, as well as legal remedies and guarantees aliens are entitled to. Lawyers, scholars, policymakers, government administrations, and non-governmental organizations involved in the development, practice and study of migration law should find this book useful. The idea of writing this book emerged in 2009 while conducting research on “Human rights of individuals who are not nationals of the country in which they live and asylum seekers” in the institutional framework of the Ludwig Boltzmann Institute of Human Rights, Vienna. The spiritus movens of my work, however, was Professor Manfred Nowak by whom I was inspired to broaden my research. Therefore I am grateful to him and his research team for all their guidance and counsel. This book could not have been completed if it had not been for the help of Dr. Aldona Chachlikowska (Head of Research Information and Knowledge Transfer Department, at Poznań University Library) and language assistance of Bernadeta Krysztofiak (senior lecturer at Adam Mickiewicz University in Poznań) and of Steve Lambley. Special appreciation is also given to Brill Publishers for their forbearance and patience.

List of Abbreviations achr American Convention on Human Rights achpr African Charter of Human and Peoples’ Rights cap Code of Administrative Procedure cat Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment cjeu Court of Justice of the European Union echr European Convention for the Protection of Human Rights and Fundamental Freedoms (hereinafter European Convention on Human Rights) ECtHR European Court of Human Rights eu European Union fcn Friendship, Commerce, and Navigation Treaties hrc Human Rights Committee iachr Inter-American Court of Human Rights iccpr International Covenant on Civil and Political Rights icerd International Convention on the Elimination of All Forms of Racial Discrimination icj International Court of Justice ilc International Law Commission icprmw International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families rp Republic of Poland sac Supreme Administrative Court tfeu Treaty on the Functioning of the European Union un United Nations unhcr The United Nations High Commissioner for Refugees us United States

Introduction International human right norms and standards require states to provide non-nationals with the necessary forum to exercise their right to be heard before deporting them.1 This book is a comprehensive legal study of the right of an alien lawfully in a State to be protected against arbitrary expulsion, which has been laid down expressis verbis both in Article 13 of the International Covenant on Civil and Political Rights (iccpr) and Article 1 of Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms (echr). The questions the book deals with are of great significance not only because of ongoing migration issues but also due to actions carried out by different governments in their fight against terrorism. Globalization and the growing disproportion of living conditions make many people take the decision to abandon their place of living to improve their life opportunities.2 At the same time the world economy is becoming more and more dependent on the work of incoming workers who supplemented the shortage of personnel in some economy sectors such as: agriculture, construction industry, gastronomy, transport, manufacturing industry and individual services.3 However, the latest economic crisis has visibly contributed to the deterioration of their situation.4 Immigrants very often face hostility and suspicion on the part of the society they live and work in. Widespread xenophobia and its manifestations make them vulnerable and 1 Kenneth Good v. Republic of Botswana, Communication No. 313/05, decision of African Commission on Human and Peoples’ Rights of 26 May 2010, para. 205. 2 Research shows that most immigrants perceive the change of their place of living as positive despite all necessary adjustments and obstacles they face upon migration. See: Human Development Report – Overcoming barriers: Human mobility and development, 2009, available on the undp website: http://hdr.undp.org/en/reports/global/hdr2009/. 3 A huge dependency can be observed in Spain, the uk and Germany. 4 A survey conducted by Harris for the New York Times shows that most citizens of the biggest eu Members States want unemployed immigrants to leave their country. 79% of Italians would support such decision, as well as 79% British, 71% Spanish, 67% German and 51% French. What is more, 54% of British nationals disapprove of citizens of other eu countries working in Great Britain. A similar attitude can be observed among German, 49% of whom is against granting eu citizens a work permit; T. Barber, “Jobless migrants should leave, say many in eu,” Financial Times, 16.03.2009, article published on Financial Times website http:// www.ft.com/cms/s/0/8a8fbdd-11c9-11de-87b1-0000779fd2ac.html#axzz1to4M2rei.

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more susceptible to expulsion, which can then make it difficult to protect them when arbitrary expulsion is ostensibly the result.5 There is also the problem of the ongoing fight against terrorism. In consequence, aliens have become the first to arouse suspicion as a potential threat to the security of a State. Such conviction, as F. Sudre puts it, makes them even more exposed to legal abuse on the part of State authorities.6 It seems obvious that States have shown a tendency to make immigration rules more and more restrictive and the rights of individuals have been particularly affected. Thereby it can be said that terrorism, in some way, prompted States to violate human rights upon expulsion of aliens, often refusing basic procedural guarantees. The key problem is, therefore, how to reconcile the right to expel an alien, which seems inherent to State sovereignty, with the need to observe fundamental human rights. Thus, it should be noted that the right of an alien to be protected against arbitrary expulsion from the country of his legal residence requires the protection of both the State’s and the alien’s interests. An alien who has resided and worked continuously in a State will have assets that require protection upon expulsion. While the idea of protecting aliens from 5 There are more and more voices in favour of implementing a more stringent immigration policy in Europe. To illustrate the tendency, let me quote an amendment, approved in a referendum, to Federal Constitution of the Swiss Confederation of 28 November 2010. The Constitution says that foreign nationals shall lose their right of residence and all other legal rights to remain in Switzerland if they are convicted of intentional homicide, rape or any other serious sexual offence, any other violent offence such as robbery, the offences of trafficking in human beings or in drugs, or a burglary offence. The amendment also refers to those who have improperly claimed social insurance or social assistance benefits. Convicted foreign nationals must be expelled right after having served a sentence. We also read that foreign nationals who have lost their right of residence and all other legal rights to remain in Switzerland must be deported from Switzerland and made subject to a ban on entry of from 5–15 years. In the event of reoffending, the ban on entry shall be fixed at 20 years. Under transitional provisions Swiss Parliament must prepare legislation within five years that clearly defines the mentioned offences and if necessary, may extend the list. See: Art. 121(3) and Art. 197(8) of the Constitution of the Swiss Confederation of 18 April 1999, available at: http://www.admin.ch/ch/e/rs/1/101.en.pdf. 6 F. Sudre, Konwencja Europejska o Ochronie Praw Człowieka i Podstawowych Wolności, Warszawa 1993, p. 67. As an example let me point to one of the methods applied by the usa after attacks of 11.09.2001 referred to as profiling security investigations which involved police detaining people whose looks might be indicative of their ethnic or racial minority origin, see: A.I. Schoenholz, “Anti-Terrorism Laws and the Legal Framework for International Migration,” in R. Cholewinski, R. Perruchoud, E. MacDonald, International Migration Law: Developing Paradigms and Key Challenges, The Hague 2007, pp. 24–25; See also: W. Osiatyński, Prawa człowieka i ich granice, Kraków, 2011, p. 94.

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being arbitrary expelled seems firmly accepted by States in international law, the content and the scope of such protection is far from clear. There have been demands for a precise definition of the right of an alien to be protected against arbitrary expulsion from the State of their legal residence but so far this approach has not been fully reflected in international conventions. The main object of this book is to examine what legal protection for an alien against arbitrary expulsion is provided under international human rights law and understand the nature and the extent of this protection. This is achieved by defining the personal scope of those entitled to enjoy the right to be protected against arbitrary expulsion, analysing the content of the right to be protected against arbitrary expulsion under provisions of the investigated human right treaties and finally by presenting the character and the content of the obligations of a State. I believe that a comprehensive legal analysis of these issues will contribute to a better understanding of the right to be protected against arbitrary expulsion. Since this study concerns individual expulsion in time of peace, mass expulsion will only be referred to if necessary as it has been thoroughly dealt with elsewhere and there is no current need to repeat the research.7 In analysing the leading issue reflected in this book, I will focus on international human rights law. My goal is to bring together the rules concerning the treaties concluded within the Council of Europe, namely the Convention for the Protection of Human Rights and Fundamental Freedoms and treaties concluded within the framework of the United Nations, such as the International Covenant on Civil and Political Rights, the Convention Relating to the Status of Refugees and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The research will be restricted to the aforementioned international conventions on human rights and their respective provisions concerning protection against arbitrary expulsion and, therefore, it will establish international regime on protection against arbitrary expulsion which is applicable to the territories of Member States of the European Union. Treaties regarding international humanitarian law are not the subject of this study. The treaties investigated in this research will be referred to without a comprehensive and comparative analysis of national laws and practices of States they concern. Nevertheless, Poland has been chosen to illustrate how international law framework is implemented in domestic law as it is no longer a country of emigrants only, but immigrants as well. More and more aliens arrive in Poland in order to obtain international protection or to improve their 7 See: Jean-Marie Henckaerts, Mass Expulsion in Modern International Law and Practice, Martinus Nijhoff Publishers, The Hague/Boston/London, 1995.

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living conditions. Although one may have an impression that immigration law in Poland is not given such an importance as it is in most European countries, this is far from true, so that some issues will be pointed out in this respect. First, along with accession to the European Union, the attractiveness of Poland has significantly increased not only as a transit country, but also as a place of education, employment and simply a country to settle.8 Secondly, it is estimated that Poland in the near future will become a destination for numerous immigrants from the former Soviet Union, and perhaps also from the Far East. Finally, downward demographic tendency should leave no illusion: there will soon be an urgent call for immigrants to supplement the labour shortage and a declining number of Polish students. It should also be emphasized that there are more and more cases of arbitrary expulsion dealt with by Polish courts, an uncommon phenomenon so far. The situation described above requires an effective institutional and legal system in Poland prepared to face an increasing influx of immigrants, and, what is more important, a system that will comply with international standards. These demands were partially reflected in the new law on migration which entered into force on 1 May 2014. Legislation adopted by the European Union, specifically Council Directive 2003/109/EC of 25 November 2003 on the status of third-country nationals who are long-term residents and Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, will also be of interest. Other regional systems, namely the American and African human rights systems, will be referred to occasionally, but the key sources will be the jurisprudence of the European Court of Human Rights – which has established a comprehensive and extensive judicature acknowledging various procedural and substantive rights as protection against arbitrary expulsion – and the views of relevant un treaty bodies: the Human Rights Committee and the Committee Against Torture respectively. The cases described or quoted in this book have been chosen from a large number of 8 The statistics from 2011 indicate a further increase in the number of visas and work permits granted, and at the same time stabilization in the number of residence permits granted. Surveys from 31 December 2011 show that 100,298 foreigners had valid residence permit (about 3,218 more than in 2010 and 7,724 more than in 2009). Most non-eu immigrants (both legal and illegal) come to Poland from: Ukraine, Belarus, Vietnam, and Armenia. Migrants from the former Soviet Union, as well as Armenia, come to Poland because of co-ethnic communities that have existed in Poland for centuries. The number of Chinese citizens receiving temporary residence permits has grown in the past few years.

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judgments and decisions made by the international jurisprudence. However, the practice of the Human Rights Committee is still not very developed in this field as it has had rather limited communications relating to arbitrary expulsion. Nevertheless, its practice is rich enough to be borne in mind when discussing some essential issues. The analysis that has been carried out tackles the following aspects: 1.

2. 3. 4.

The scope and the content of the right of an alien to be protected against arbitrary expulsion from a State of their legal residence included in the International Covenant on Civil and Political Rights, the European Convention on Human Rights, based on the case law of the Human Right Committee and the European Court of Human Rights as well as the extent to which standards appointed in both treaties have been accepted by Polish legislation; The scope of protection against arbitrary expulsion from the State of their legal residence each alien is entitled to; The scope and the content of the State’s responsibility for arbitrary expulsion; Reparation for arbitrary expulsion of an alien.

The analysis of the above-mentioned issues called for formulation of the following questions: 1. 2. 3. 4.

What is the right of an alien to be protected against arbitrary expulsion from a State of their legal residence ? What are the protective measures against expulsion from a State of their legal residence an alien is entitled to? Are “integrated aliens” entitled to special protection against expulsion? What obligations for States derive from the discussed right of an alien?

The study carried out here is based on selected provisions of international conventions on human rights which regulate the right of an alien to be protected against arbitrary expulsion from the State of legal residence. When interpreting the regulations of conventions and other legal acts, international case law on the subject has been taken into account and the opinions of the Human Rights Committee and the jurisprudence of the European Court of Human Rights in Strasburg relating to the analysed right of an alien have been quoted. Polish law is presented rather as a comparative illustration of how international standards are implemented in every-day life. The four key questions will be answered throughout the whole book, which consists of six chapters.

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The first chapter, Categories of aliens and types of expulsion, is of introductory nature and defines the term “alien” and introduces its different categories. It also covers the notion of “expulsion” and specifies what “lawful residence” is. The second chapter, The concept and the development of the right of an alien lawfully in the territory of a State to be protected against arbitrary expulsion, focuses on the historical background of the right of an alien to be protected against arbitrary expulsion from his State of lawful residence and its general characteristics including the ideas put forward by both legal doctrine representatives and the jurisprudence within the international human rights law. The third, The scope of protection against arbitrary expulsion from a State of legal residence under international human rights law, concentrates on analysis of the scope of protection against arbitrary expulsion from the State of lawful residence on the grounds of international human rights law. Special attention has been given to regulations which guarantee protection against arbitrary expulsion. These are the following: • • • •

the right of an alien to have protection of private and family life, an individual’s right not to be expelled from his own country, principle of non-discrimination, an alien’s right not to be expelled to a country where he would face grave human rights violations (the non-refoulement principle).

Later in the chapter there are examples of international jurisprudence on implementing these rights and the main problems that emerged in the former case law of the Human Rights Committee and the European Court of Human Rights. The fourth, Procedural measures and guarantees to which an alien is entitled to, catalogues the procedural guarantees an alien is granted against arbitrary expulsion on the grounds of international conventions. Following the analysis, several conclusions have been drawn on the positive and negative aspects of these rights and the former practice of the Human Rights Committee and the European Court of Human Rights in this regard. The fifth, Polish approach to protection against arbitrary expulsion, gives an insight into the extent to which set standards in the discussed human rights treaties were accepted by Polish legislation. The law and practice of Poland, however, is presented in some detail because of the fundamental value of a discussion the topic may instigate. Therefore, procedural regulations and the course of proceedings in case of expulsion have been widely discussed. Polish judicature has been quoted to show the way the existing law concerning aliens is interpreted.

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The last chapter, Responsibility of a State for violating the right of an alien to be protected against arbitrary expulsion, deals with the responsibility of a State and reparation for arbitrary expulsion of an alien. It shows a range of problems concerning an internationally wrongful act committed by a State in the form of arbitrary expulsion. It also discusses different forms of reparation for injuries suffered that an expelled alien is entitled to. Hence, the book gives a complete and comprehensive overview of the problem of the protection of an alien against arbitrary expulsion. The work has not only theoretic implications but also, and most importantly, tackles practical issues present in international jurisprudence as well as domestic case law recently heard by Polish courts. Nevertheless, the limited scope of the subject has impeded a thorough analysis of, inter alia, both American and African human rights systems as well as collective expulsion phenomenon which here had to be narrowed down due to the main subject of this book.

chapter 1

Categories of Aliens and Types of Expulsion 1 Introduction Immigration policy is one of the State’s primary functions. All forms of immigration proceedings of a State Party to the International Covenant on Civil and Political Rights and the European Convention on Human Rights are subject to the human rights standards established in them. Being an alien does not take him1 outside the international protection of human rights. However, concerning the right to be protected against arbitrary expulsion, immigration status has a decisive significance, since this right is guaranteed only to lawfully present aliens. Without a doubt, the possibility of expulsion creates a feeling of uncertainty for an individual living in a foreign State. For that reason, legal protection against expulsion measures turns out to be one of the key issues regarding the status of lawful aliens. For precise understanding of the notion of an alien, some basic classifications have to be made. Therefore, I will discuss: long-term immigrants, migrant workers, refugees, stateless persons and eu citizens. 2

The Notion of an Alien

In 1892, the Institute of International Law recognized “aliens as all those who do not have a current right of nationality in the State without distinguishing as to whether they are simply visitors, or are resident domiciled in it or whether they are refugees or have entered the country voluntarily.”2 Therefore, inter­ national law doctrine defines “an alien”3 as a natural person who is not a national of the State in which he is present.4 An alien, thus, could be a citizen of another country or one without any citizenship (a so-called stateless person).5 1 Throughout this book use of the masculine pronouns and possessive adjectives (he, him, his) should in general be taken as representing both male and female. 2 International Rules on the Admission and Expulsion of Aliens (Règles internationales sur l’admission et l’expulsion des étrangers), adopted by Institute of International Law in 1892, Art. 1. 3 There are two coexisting terms, namely: “alien” and “non-national.” 4 A. Klafkowski, Prawo międzynarodowe publiczne, Warszawa, 1979, p. 270. 5 R. Bierzanek, J. Symonides, Prawo międzynarodowe publiczne, Warszawa, 1999, p. 259.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004265448_002

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J. Białocerkiewicz is correct in stating that there are many negative definitions of an alien, both in literature and international agreements.6 They refer to someone who is staying in a State or passing through its territory without citizenship of that State.7 The lack of “nationality” is a differentiating criterion between aliens and nationals. The Polish legislator in Article 3(2) of the Act on Aliens of 12 December 2013 also applied a commonly accepted negative definition: “Any person who does not have Polish citizenship shall be regarded as an alien,”8 regardless of whether the person has a citizenship of another State or is simply stateless, as the Polish law does not make any distinction in treating these two. Such assumption is consistent with international legal standards which are based upon attributes of a human being rather than a citizen, an alien or a stateless person.9 It should be emphasized that the right of an alien to be protected against arbitrary expulsion expressed in Article 13 of the International Covenant on Civil and Political Rights,10 Article 1 of Protocol No. 7 to the European Convention on Human Rights,11 Article 22(6) of the American Convention on 6

7 8 9 10

11

Moreover, it is worth mentioning that in the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in Which They Live, adopted by United Nations General Assembly in 1985, when defining the notion of “an alien” there was also a reference to a negative criterion – the lack of nationality of the State an individual stays in, available on the un website: http://www.un.org/documents/ga/ res/40/a40r144.htm. J. Białocerkiewicz, Nowe polskie prawo o cudzoziemcach, Toruń, 2003, p. 18. Polish Journal of Laws of 2013, item 1650. B. Mielnik, “Status prawny cudzoziemców w rp,” in B. Banaszak, A. Preisner (eds.), Prawa i wolności obywatelskie w Konstytucji rp, C.H. Beck, Warszawa, 2002, pp. 230–231. Art. 13 of the iccpr: “An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.” Art. 1 of Protocol No. 7 to the European Convention on Human Rights: “1. An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed: (a) to submit reasons against his expulsion, (b) have his case reviewed, and (c) to be represented for these purposes before the competent authority or a person or persons designated by that authority. 2. An alien may be expelled before the exercise of his rights under paragraph 1. a, b and c of this Article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security.”

Categories Of Aliens And Types Of Expulsion

3

Human Rights (achr)12 and Article 12(4) of the African Charter on Human and Peoples’ Rights (achpr)13 has a limited personal scope since they do not refer to all aliens, but only to those lawfully staying in another State which is a party to these treaties. In other words, the personal scope of the analysed right refers both to aliens who are permanent residents and those who reside on business, or come as tourists or for scientific reasons with no intention to settle.14 2.1 Long-Term Immigrants Soon after the Second World War, countries from Western Europe showed a positive attitude towards newcomers from neighbouring countries or former colonies and therefore encouraged immigration in order to supplement the workforce in their territories. Most of those who did so (in the 1950s and 1960s) have stayed until this day to be finally granted a status of so-called long-term immigrants.15 This term refers to persons who do not have the nationality of the host country, regardless of the fact that they have spent most of their lives 12 13

14

15

Art. 22(6) of the achr: “An alien lawfully in the territory of a State Party to this Convention may be expelled from it only pursuant to a decision reached in accordance with law.” Art. 12(4) of the achpr: “A non-national legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law.” The time criterion helps to distinguish between permanent stay, so-called permanent migration associated with settling down and registering in Register Office of a country, and temporary migration that can be divided into long- and short-term. We can use the term “settled immigrants.” It also needs to be mentioned that there are other existing expressions such as integrated (assimilated) immigrants or quasi-nationals, see: P. van Dijk, “Protection of ‘Integrated’ Aliens Against Expulsion under the European Convention on Human Rights,” European Journal of Migration Law, No. 1, 1999, pp. 293–312; G. Gaja, “Expulsion of Aliens: Some Old and New Issues in International Law,” Cursos Euromediterraneos Bancaja de Derecho Internacional, Vol. 3, 1999, p. 292; K. Reid, A Practitioner’s Guide to the European Convention on Human Rights, Sweet & Maxwell Ltd., London, 2004; R. Cholewinski, “Strasbourg’s ‘Hidden Agenda’ The Protection of SecondGeneration Migrants from Expulsion under Article 8 of the European Convention of Human Rights,” Netherlands Quarterly of Human Rights, Vol. 12, No. 3, 1994, pp. 287–306; N. Rogers, “Immigration and the European Convention on human Rights: Are new principles emerging?” European Human Rights Law Review, No. 1, 2003, pp. 53–64; M.B. Dembour, “Human Rights Law and National Sovereignty in Collusion: The Plight of Quasi-Nationals at Strasbourg,” Netherlands Quarterly of Human Rights, Vol. 21, No. 1, 2003, pp. 63–98: Ch. Steinorth, “Uner v. The Netherlands: Expulsion of Long-Term Immigrants and the Right to Respect for Private and Family Life,” Human Rights Law Review, Vol. 8, No. 1, 2008, pp. 185–196.

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there. These aliens have established strong family and social bonds with their State of residence which subsequently led to them losing ties with the country of their origin.16 It is essential, therefore, to guarantee long-term immigrants a safe residence so that they can fully and effectively integrate into the society of the host country.17 What was created by the Council of Europe in the form of European Convention on Human Rights and Fundamental Freedoms guarantees protection of residents of third countries who have become long-term residents against arbitrary expulsion which might result in family separation (and would violate their family and private life according to Article 8 of the echr).18 In addition, the Council of Europe issued a recommendation, Security of LongTerm Migrants, in which it stated that the status of a long-term immigrant can be granted to an alien who: • has resided lawfully and habitually for a period of at least five years; or • has been authorized to reside in its territory permanently or for a period of at least five years; or • is a family member whose residence in the territory of the Member State has been authorized for a maximum period of five years for the purpose of family reunification with a national of the Member State.19 The issue of the protection of long-term immigrants has also been on the agenda of the European Union. The European Council, at its special summit in Tampere on 15 and 16 October 1999, stated that the legal status of third-country citizens should be approximated to that enjoyed by Member States’ citizens. An individual who has stayed lawfully in the territory of a Member State for a definite period of time and who has a long-term residence permit should enjoy rights similar to those any other eu citizen has been granted. It has led to adopting Council Directive 2003/109/EC of 25 November 2003 on the status of third-country nationals who are long-term residents.20 16 17

Ch. Steinorth, op. cit., p. 186. K. Groenendijk, E. Guild, H. Dogan, Security of Residence of Long-Term Migrants. A Comparative Study of Law and Practice in European Countries, Council of Europe Publishing, 1998, p. 5; See also: E. Guild, Security of Residence and Expulsion. Protection of Aliens in Europe, Kluwer Law International, 2001, p. 7. 18 H.G. Schermers, “Human Rights of Aliens in Europe,” in N.A. Neuwahl, A. Rosas (eds.), The European Union and Human Rights, Martinus Nijhoff Publishers, 1995, pp. 123–130. 19 Recommendation Rec(2000)15 concerning the Security of Long-Term Migrants, 13 September 2000. 20 Official Journal of the European Union of 2004, L 16/44.

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The above-mentioned Council Directive applies to third-country nationals lawfully staying in the territory of a Member State, thus residents who are not citizens of the European Union under Article 20(1) of the Treaty on the Func­ tioning of the European Union.21 The status of a long-term resident is granted to a third-country national who has lawfully and habitually been staying in the territory of a Member State for five years before the application was submitted.22 Bearing in mind Article 4 of the Directive, it must be understood that the five-year period should be counted from the first day of the legal stay. Another condition that has to be met before the status of a long-term resident is granted is to prove that third-country nationals have stable and regular resources for themselves and their families sufficient to live without recourse to social assistance system of the eu country concerned and current medical insurance for all the risks normally covered for nationals of a Member State. The term “stable and regular resources” is a general provision that can be freely interpreted in the Member States. The Directive, thus, specifies only that Member States may determine these resources by reference to their nature and regularity and may also take into account the level of minimum wages and pensions before the application for long-term residence permit was submitted. M. Szwarc-Kuczer is correct, though, to call for an interpretation of this notion in the light of the European law so that a universal model can be set up throughout the eu.23 It has to be stressed here that such condition puts third-country nationals in a less privileged position than other eu nationals. Under the freedom of movement, eu nationals “have to have sufficient resources for themselves and for the members of their families to ensure that they do not become a burden on the social services of the host Member State.”24 A third-country national may also be required to comply with integration conditions as prescribed in national law.25 Member States will then decide whether the integration was successful or not. 21 22 23

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Art. 3(1) of Directive 2003/109/EC. Art. 4 of Directive 2003/109/EC. M. Szwarc-Kuczer, „Sytuacja prawna obywateli państw trzecich w Unii Europejskiej w świetle dyrektywy 2003/109-ewolucja w kierunku równego traktowania?” in W. Czapliński (ed.), Prawo w XXI wieku. Księga pamiątkowa 50-lecia Instytutu Nauk Prawnych Polskiej Akademii Nauk, Warszawa, 2006, p. 911. Art. 7 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the rights of the citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (eec) No. 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC,72/194/EEC,73/148/ EEC,75/34/EEC,75/35/EEC, 90/364/EEC,90/365/EEC and 93/96/EEC, Official Journal of the European Union of 2004, L 158/77. Art. 4(2) of Directive 2003/109/EC.

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The Directive makes it clear that in order to constitute a genuine instrument for the integration of long-term residents into society in which they live, such residents should enjoy equal treatment with nationals of Member States in a wide range of social and economic matters.26 It calls for adopting an approach to fully integrate third-country nationals into the economic and social life of the European Union. Therefore, long-term residents should be granted enhanced protection against expulsion, based on the criteria determined by the judgments of the European Court of Human Rights. To ensure protection against arbitrary expulsion, Member States should concede effective legal redress. Member States may take a decision to expel a long-term resident solely if an alien constitutes an actual and sufficiently serious threat to public order or public security (Article 12 of the Directive). The decision shall not be founded on economic considerations. Before expelling a long-term resident, Member States shall refer to the following factors: • • • •

the duration of residence in their territory; the age of the person concerned; the consequences for the person concerned and family members; links with the country of residence or the absence of links with the country of origin.27

The above-mentioned criteria are similar to those adopted by the Committee of Ministers in Recommendation 15/2000.28 It should be noted that the Council of Europe extends the scope of protection of long-term immigrants against expulsion as it acknowledges that Member States should guarantee that a long-term immigrant is not expelled: • after five years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of two years’ imprisonment without suspension; • after ten years of residence, except in the case of a conviction for a criminal offence where sentenced to in excess of five years of imprisonment without suspension; • after twenty years of residence, a long-term immigrant should no longer be expellable.29 26 Preamble to Directive 2003/109/EC, para. 12. 27 Art. 12(3) of Directive 2003/109/EC. 28 Recommendation Rec(2000)15 concerning the Security of Long-Term Migrants, 13 September 2000. 29 Ibidem.

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This approach was further extended in the Parliamentary Assembly Recommendation of Council of Europe of 2001. This says that under no circumstances should expulsion be applied “to people born or brought up in the host country or to under-age children.”30 The Parliamentary Assembly also stressed that the application of expulsion measures against long-term immigrants is both disproportionate and discriminatory as it has lifelong consequences for them, often entailing separation from their family and enforced uprooting from their environment. Taking account of the Recommendation, the Assembly has recommended that the Committee of Ministers take steps to formulate an additional protocol to the European Convention on Human Rights concerning the protection of long-term immigrants against expulsion.31 No such protocol has been formulated as yet, however. 2.2 Migrant Workers Nowadays, there are approximately 191 million people residing in a country other than of their origin. The International Labor Organization (ilo) estimates that 40 million of them are migrant workers who are commonly defined as those moving from one country to another in order to find a legal employment or take up a job on their own. An additional 50 million are members of their families.32 The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (icrmw), adopted by the un in 1990,33 defines a “migrant worker” as “a person who is to be engaged in a remunerated activity in a State of which he or she is not a national.” The Convention refers to the following categories of migrant workers: frontier workers, seasonal workers, seafarers, workers on an offshore installation, itinerant workers, project-tied workers, specific-employment workers or self-employed workers. Thus, the scope of the notion of “migrant worker” is wide and comprises all the people of different professional qualifications who migrate for various reasons. Migrant workers are in high demand for medium- and low-skilled work in industrialized countries as well as high-skilled work in developed countries where they help to keep their competitiveness in the market economy. If they are given an opportunity to make good use of their potential, on the same 30

Parliamentary Assembly Recommendation 1504(2001) on non-expulsion of long-term immigrants, 14 March 2001. 31 Ibidem. 32 J. Fitzpatrick, “The Human Rights of Migrants,” in T.A. Aleinikoff, V. Chetail (eds.), Migration and International Legal Norms, t.m.c. Asser Press, The Hague 2003, p. 177. 33 The Convention entered into force on 1 July 2003. Poland has not yet ratified the Convention. So far only 47 countries have acceded.

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terms as others, the majority of them will surely bring profits to the receiving societies. However, although they do the same job and pay the same taxes as nationals of the given State, they are often subject to arbitrary expulsion.34 According to the Vienna Declaration and Programme of Action, issued by the World Conference on Human Rights in Vienna in 1993: great importance must be given to the promotion and protection of the human rights of persons belonging to groups which have been rendered vulnerable, including migrant workers, the elimination of all forms of discrimination against them (…). The World Conference on Human Rights urges all States to guarantee the protection of the human rights of all migrant workers and their families (…). The World Conference on Human Rights considers that the creation of conditions to foster greater harmony and tolerance between migrant workers and the rest of the society of the State in which they reside is of particular importance.35 The above-mentioned Convention gives migrant workers the following procedural guarantees against arbitrary expulsion under Article 22: • migrant workers and members of their families may be expelled from the territory of a State Party only in pursuance of a decision taken by the competent authority in accordance with law, • the decision shall be communicated to them in a language they understand; upon their request where not otherwise mandatory, the decision shall be communicated to them in writing and, save in exceptional circumstances on account of national security, the reasons for the decision likewise stated, • migrant worker shall have the right to submit the reason he should not be expelled and to have his case reviewed by the competent authority, unless compelling reasons of national security require otherwise, • if an expulsion decision that has already been executed is subsequently annulled, the person concerned shall have the right to seek compensation according to law.36 34 35 36

D. Weissbrodt, The Human Rights of Non-citizens, Oxford University Press, 2008, pp. 197–199. The text of the Vienna Declaration and Programme of Action can be found on ohchr website: http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx. Moreover, the International Labor Organization points out that “migrant workers and members of their families shall not be subject to arbitrary expulsion.” International Labor Organization, General Survey on Migrant Workers, 1999, para. 560.

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2.3 Refugees When discussing the issue of arbitrary expulsion from a lawful State, special attention should be paid to aliens who were granted refugee status and a residence permit. The definition of a refugee was introduced in the Convention Relating to the Status of Refugees in 1951 and its Protocol of 1967.37 Article 1A(2) of the Convention defines the term “refugee” as any individual who, “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or a political opinion, is outside the country of his nationality and is unable, or owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” It should be noted that there is a distinction between a refugee and a migrant. Migrants – especially those who are driven by economic reasons – move voluntarily in order to improve their living standards and those of their families. Refugees, however, need to move for reasons of safety or freedom. Their situation is far more complex, as they are forced to leave their country or flee from the danger they were exposed to. Many of them cannot or do not want to return to the country of their origin for fear of persecution. J. Białocerkiewicz claims that it is wrong to think that refugees are an unnecessary burden on society since history shows examples of refugees exerting a considerable influence on political, scientific and economic life of the countries which offered them shelter.38 According to the un High Commissioner for Refugees (unhcr), there is an increasing public perception of refugees as involved in crime and terrorism.39 The us security procedures under Operation Liberty Shield may serve as an example, as they permitted arbitrary detention and secret deportation of foreign nationals, including refugees from countries with active terrorist organizations.40 Giving an alien refugee status provides them with lasting protection in the territory of the host State, as expulsion cannot be executed unless they are 37 Poland ratified this Convention, Polish Journal of Laws of 1991, No. 119, item 515. 38 J. Białocerkiewicz, Prawo międzynarodowe publiczne. Zarys wykładu, TNOiK Dom Organizatora, 2007, p. 251. 39 See: Ten Refugee Protection Concerns in the Aftermath of Sept. 11, available on the unhcr website: http://www.unhcr.org/cgi-bin/texis/vtx/news/opendoc.htm?tbl=NEWS&page =home&id=3bd5469b7. 40 D. Weissbrodt, op. cit., p. 176.

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deprived of the status in the first place. It should be added that expulsion of a refugee who is lawfully in the territory of a granting State is admissible only under exceptional circumstances. The Convention Relating to the Status of Refugees guarantees special protection against expulsion. Under Article 32: 1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority. In other words, the rule is that a refugee cannot be expelled save on the abovementioned grounds. Additional protection against expulsion is also guaranteed under the nonrefoulement principle expressed in Article 33 of the Convention, which says that: 1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.41 The European Council, at a special summit held on 15 and 16 October 1999 in Tampere agreed to work on establishing a Common European Asylum System based on the full and inclusive application of the Convention Relating to the Status of Refugees of 28 July 1951, supplemented by the New York Protocol of 31 January 1967, thus ensuring prohibition of expulsion and maintaining the principle of non-refoulement. 41 Ibidem.

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2.4 Stateless Persons A stateless person is “a person who is not regarded as a national by any State under the operation of its law,” meaning a person without a citizenship – a stateless person de jure.42 However, a person is often unable to prove his statelessness de jure, but still does not have an effective citizenship and enjoys no protection. He is, therefore, considered to be de facto stateless. Statelessness may stem from various factors such as conflict of law, transfer of territory, law related to marriage, administrative practices, discrimination, law related to registration of births, denationalization (deprivation of nationality) or renunciation of citizenship (when an individual renounces the protection of the country).43 Many stateless persons all over the world fall victim to forced eviction. Since they share a similar fate with refugees, the responsibility to observe, prevent and limit the phenomenon of statelessness was given to the un High Commissioner for Refugees (unhcr). The Convention Relating to the Status of Stateless Persons of 1954 remains the principal legal instrument to regulate and improve the status of stateless persons and guarantee basic rights and freedoms.44 The provisions included in the Convention are quite similar to the provisions in the Convention Relating to the Status of Refugees. It is commonly believed that all Contracting States shall, as far as possible, facilitate the assimilation and naturalization of stateless persons. Article 7(1) of the Convention specifies the basic level of protection a stateless person is entitled to. This says that, except where the Convention contains more favourable provisions, “a Contracting State shall accord to stateless persons the same treatment as is accorded to aliens generally.” With respect to most rights listed in the Convention of 1954, stateless persons should have at least the same access to rights and benefits as aliens. The Convention does not oblige States to issue a residence permit to an individual while examining their application for the status of a stateless person. Nevertheless, once the individual is in the territory of the State, 42

43

44

Art. 1(1) of the Convention Relating to the Status of Stateless Persons of 1954. It embraces individuals who were not granted citizenship automatically or following a decision in accordance with the law of a State. You can be a stateless person from birth (a child born in the territory of a State which adopted ius sanguinis – right of blood – and having parents who are nationals of a State which adopted the principle ius soli – right of soil) or become a stateless person because of loss of nationality of one State and not being granted another nationality. Despite the unhcr efforts to promote the Convention of 1954, it was ratified by 83 countries only. Poland has not signed the Convention. In contrast, the Convention Relating to the Status of Refugees of 1951 was ratified by 145 countries.

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defining his nationality may be the only possible way to help them. If an individual is considered stateless and has no possibility to return to the country of his habitual residence or such country does not exist, the only solution may be to let him into the territory of the given State and grant a residence permit. Once granted, a residence permit in the territory of a host country, a stateless person is entitled to be protected against arbitrary expulsion. Such expulsion may be extremely harmful to stateless persons because of their unique legal status as it requires a permit to enter another country willing to receive them. In practice, many countries refuse to receive stateless persons who, as a result, are subjected to indefinite imprisonment.45 The Convention guarantees that under Article 31(1), Contracting States shall not expel a stateless person lawfully in their territory save on grounds of national security or public  order. It should be noted that the content of this provision is similar to Article 32 of the Convention Relating to the Status of Refugees. There is a view that an interpretation of regulations ensuring protection against expulsion to refugees is also applicable mutatis mutandis to stateless persons. Expulsion shall be ordered only as a result of a decision reached in accordance with due process of law. What is more, a stateless person should be granted procedural guarantees. 2.5 eu Citizens Protection against expulsion of eu citizens and their family members is enshrined in the Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (eec) No. 1612/68 and repealing Directives 64/221/ EEC,68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/ EEC, 90/365/EEC and 93/96/EEC.46 This regulation lays down the conditions governing the exercise of the right of free movement and residence within the territory of Member States by eu citizens and their family members, the right of permanent residence in the territory of the Member States for eu citizens and their family members, and protection against arbitrary expulsion. The Directive applies to all eu citizens who move to or reside in a Member State

45 46

D. Weissbrodt, op. cit., pp. 99–100. Official Journal of the European Union of 2004, L 158/77. This Directive replaced the Directive 64/221/CEE of 25 February 1964 on the co-ordination of special measures concerning the movement and residence of foreign nationals which are justified on grounds of public policy, public security or public health.

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other than that of which they are a national, and to their family members who “accompany or join” them. However, it should be noted that eu citizens are entitled to protection against arbitrary expulsion guaranteed under the international human rights treaties, as applicable to the territories of the Member States of the European Union.47 In the jurisprudence of the Court of Justice of the eu, human rights treaties play a significant role as a source of inspiration for fundamental principles of European law.48 Under Article 2(1) of the Directive 2004/38/EC the term “eu citizen” is defined as a person who holds the citizenship of one eu Member State. According to Article 20 of the Treaty on the functioning of the European Union (tfeu): “Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.”49 In turn, the notion of “family member” embraces: (a) the spouse; (b) the partner with whom the eu citizen has contracted a registered partnership on the basis of the legislation of a Member State, if the legislation of the host Member State treats registered partnerships as equivalent to marriage and in accordance with the conditions laid down in the relevant legislation of the host Member State; (c) the direct descendants who are under the age of 21 or are dependants and those of the spouse or partner as defined in point (b); (d) the dependent direct relatives in the ascending line and those of the spouse or partner as defined in point (b).50 Needless to say, the right to move freely shall be exercised in compliance with the legal order of each Member State. For that reason, pursuant to Article 27(1) of Directive 2004/38/EC, a Member State may limit the freedom of movement 47 All eu Member States are members of the Council of Europe. Most human treaties I discuss are ratified by all eu Member States. 48 J. Nold, Kohlen und Baustoffgroßhandlung v. Commission of the European Communities, Case No. C-4/73, Judgment of the Court of Justice of the eu of 14 May 1974, para. 13: “International treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law.” 49 Official Journal of the European Union of 2012, C 326/1 (consolidated version). 50 Art. 2(2) of Directive 2004/38/EC.

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and residence of eu citizens on grounds of public policy, public security or health. The expulsion decision taken on grounds of public policy or public security shall comply with the principle of proportionality and shall be based exclusively on the personal conduct of the individual concerned.51 In other words, the principle of proportionality has a fundamental significance in assessing whether the expulsion is arbitrary or not. The personal conduct of the individual must represent a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society, “which implies, in general, the existence in the individual concerned of a propensity to act in the same way in the future.”52 Under Article 27(2) of the Directive, justifications that are isolated from the particulars of the case or that rely on considerations of general prevention shall not be accepted. The European legislator must also ensure that previous criminal convictions shall not in themselves constitute grounds for taking such decision. Pursuant to the discussed provisions it is granted that expulsion proceedings against eu citizens or their non-eu family members are carried out after examining each case individually. Protection against expulsion depends on the length of residence in a host eu Member State. In expulsion proceedings, the domestic authorities need to take into account how long an eu citizen or a non-eu family member has resided in the territory of the Member State, his age and state of health, family and economic situation, social and cultural integration into the Member State and the extent of his links with the country of origin.53 Member States are obliged to follow these provisions. Article 28(2) stipulates that an individual who has the right of permanent residence in the host eu Member State’s territory can be expelled only on serious grounds of public policy or public security. Nevertheless, Directive 2004/38/EC states that the greater the degree of integration of eu citizens and their family members in the host Member State, the greater the protection against expulsion should be. Only in exceptional circumstances, where there are imperative grounds of public security, should an expulsion measure be taken against eu citizens who have resided for many years in the territory of the host Member State, particularly when they were born and have resided there throughout their life.54 51 52 53 54

Art. 27(2) of Directive 2004/38/EC. P.I. v. Oberbürgermeisterin der Stadt Remscheid, Case No. C-348/09, Judgment of 22 May 2012 of the Court of Justice of the eu, para. 34. Art. 28(1) of Directive 2004/38/EC. Item 24 of Directive 2004/38/EC.

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The Court of Justice of the eu (cjeu) took the view that the concept of “imperative grounds of public security” presupposes not only the existence of a threat to public security, but also that such a threat is of a particularly high degree of seriousness, as is reflected by the use of the words “imperative grounds.”55 According to the Court, there must be a particularly serious threat to one of the fundamental interests of society, which might pose a direct threat to the peace and physical security of the population.56 Article 28(3) of Directive 2004/38 provides that imperative grounds of public security are to be defined by Member States. The Commission, in its Report on the application of Directive 2004/38, states that the difference between the scope of Articles 28(2) and Articles 28(3) of the Directive cannot be trivialized, nor should the concept of public security be extended to measures that should be covered by public policy.57 A decision to expel an eu citizen or a non-eu family member should be issued in an individualized due process. First of all, an individual shall be notified in writing of the expulsion decision, which needs to be properly justified in such a way that he is able to comprehend its content and possible  implications. Article 30(3) of the Directive stipulates that “the notification shall specify the court or administrative authority with which the person concerned may lodge an appeal, the time limit for the appeal and, where applicable, the time allowed for the person to leave the territory of the Member State.” When analysing Directive 2004/38/EC, one may draw the conclusion that the provisions stipulated by this regulation are more favourable – as far as protection against arbitrary expulsion is concerned – to this group of foreign nationals as they differ from the provisions relating to all foreign nationals. Its preferential nature lies in freedom of movement, on the one hand, and in European citizenship, which grants every eu member a right to move and stay within the territory of Member States, on the other. For holders of a right of permanent residence, the expulsion criteria are even stricter than those to be applied to holders of short-term residence rights. While eu citizens having a 55 56 57

P.I. v. Oberbürgermeisterin der Stadt Remscheid, Case No. C-348/09, Judgment of 22 May 2012 of the Court of Justice of the eu, para. 20. Ibidem., para. 28. Report from the Commission to the European Parliament and the Council on the application of Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States of 10 December 2008, Com(2008) 840, p. 8, available on the eu website: http://eur-lex.europa .eu/LexUriServ/LexUriServ.do?uri=COM:2008:0840:FIN:pl:PDF.

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right of residence can be expelled on grounds of public policy or public security, those having a right of permanent residence can be expelled only on serious grounds of public policy or public security. Those having resided in the host Member State for the previous ten years can be expelled only on imperative grounds of public security. 3

The Notion of Expulsion

3.1 Individual Expulsion It is a State’s internal decision to expel an alien from its territory. The notion of “individual expulsion” is understood as a decision of the authorities of a State to compel an alien to depart from his territory in a given time.58 International human rights treaties prescribe special provisions concerning this type of expulsion. Article 13 of the iccpr, Article 1 of Protocol No. 7 to the echr, Article 22(6) of the achr and Article 12(4) of achpr apply to individual cases of expulsion of aliens lawfully residing in the territory of a State. According to the General Comment No. 15 of the Human Rights Committee, Article 13 of the iccpr is applicable to all procedures aimed at the obligatory deportation of an alien, whether described in national law as expulsion or otherwise.59 It must be emphasized that the Article in question, as was stated in the preliminary draft, is not to be applied to the extradition of aliens. It was considered that the notion of extradition is far too complicated and may lead to collision with other treaties.60 In the beginning, the Human Rights Committee was of such opinion in its decisions.61 However, with time it has changed its attitude and unambiguously declared that extradition is covered by Article 13.62 The notion of “expulsion” under Article 1 of Protocol No. 7 to the echr, however, embraces all measures which compel an alien to depart from the 58 59 60

61 62

S. Sawicki, Prawo państwa do regulowania międzynarodowego ruchu osobowego, Warszawa, 1986, p. 83. Human Rights Committee, General Comment No. 15 of 1 April 1986, para. 9. Z. Kędzia, “Prawo cudzoziemca do ochrony przed wydaleniem z kraju legalnego pobytu,” in R. Wieruszewski (ed.), Prawa człowieka: model prawny, Warszawa-Wrocław-Kraków, 1991, p. 489. M.A. v. Italy, Communication No. 117/1981, decision of 21 September 1981, para. 13.4. Pierre Giry v. Dominican Republic, Communication No. 193/1985, decision of 20 July 1990, para. 5.5. See: Kindler v. Canada, Communication No. 470/1991, decision of 18 November 1991, para. 6.6.

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State of their legal residence,63 but does not include extradition. These measures include, for instance, removing an alien from their home and placing them on board an aircraft.64 “Expulsion” is an autonomous concept which is independent of any definition contained in domestic legislation of the States Parties involved.65 The term “expulsion” is similar in meaning to the term “deportation.” These two are often alternatively used by the European Court of Human Rights.66 3.2 Collective Expulsion Collective expulsion (in literature also referred to as mass expulsion) means “an act or behavior by which a State compels a group of aliens to leave its territory.”67 As was indicated by the Special Rapporteur on the rights of non-citizens, D. Weissbrodt, the collective expulsion of aliens, as a group, is prohibited in the absence of consideration of each particular case. In his final report, he stated: “Any measure that compels non-citizens, as a group, to leave a country is prohibited except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual non-citizen in the group.”68 In other words, the prohibition of collective expulsion could be violated by expelling a small group of aliens (e.g. two or more) who have not received individual consideration of their case.69 Likewise, the International Law Association has expressed the view that: “Mass expulsion of aliens, whether long-term residents, migrant workers, stateless persons or irregular asylum seekers, must not be arbitrary or discriminatory in its application, or serve as a pretext for genocide, confiscation of property or reprisal. The power of expulsion must be exercised in conformity with the principles of 63

64 65 66 67 68 69

A. Wróbel, “Protokół nr 7 do Konwencji o ochronie praw człowieka i podstawowych wolności,” in L. Garlicki (ed.), Konwencja o Ochronie Praw Człowieka i Podstawowych Wolności. Tom II. Komentarz do artykułów 19–59 oraz do protokołów dodatkowych, C.H. Beck, Warszawa 2011, p. 623. ECtHR 5 October 2006, Bolat v. Russia, Application No. 14139/03, para. 76. Explanatory Report on Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ets, No. 117, para. 10. A. Wróbel, Protokół nr 7 do Konwencji…, op. cit., p. 623. M. Kamto, Third Report on the Expulsion of Aliens, 19 April 2007, A/CN.4/581, p. 43. D. Weissbrodt, The Rights of Non-citizens, United Nations, New York and Geneva, 2006, p. 18. For example if a State decided to expel collectively all the individuals who participated in a riot, without examining the seriousness of the offence committed by each individual, the specific role that he assumed in the riot or the impact of the expulsion on his particular situation (e.g. on his family life).

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good faith, proportionality and justifiability, with due regard to the basic human rights of the individual concerned.”70 The prohibition of collective expulsion is explicitly set forth in Article 4 of Protocol No. 4 to the echr, Article 22(9) of the achr, Article 12(5) of the achpr and Article 22(1) of the icprmw. Article 4 of Protocol No. 4 to the echr states: “Collective expulsion is prohibited.” Article 22(9) of the American Convention on Human Rights is formulated in the same vein: “The collective expulsion of aliens is prohibited.” In turn, the African Charter of Human and Peoples’ Rights stipulates in Article 12(5) that: “The mass expulsion of nonnationals shall be prohibited. Mass expulsion shall be that which is aimed at national, racial, ethnic or religious groups.” However, the most specific regulation is included in Article 22(1) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families: “Migrant workers and members of their families shall not be subject to measures of collective expulsion. Each case of expulsion shall be examined and decided individually.” It should be stressed that, unlike the prohibition of arbitrary expulsion of lawful aliens, the prohibition of collective expulsion applies regardless of whether a group of aliens lawfully reside in the expelling State or not. Article 13 of the International Covenant on Civil and Political Rights does not contain an explicit prohibition of collective expulsion. Nonetheless, the Human Rights Committee has expressed the view that such expulsion would be contrary to the procedural guarantees for individual aliens. In its General Comment No. 15, the Human Rights Committee stated that: Article 13 directly regulates only the procedure and not the substantive grounds for expulsion. However, by allowing only those carried out ‘in pursuance of a decision reached in accordance with law’, its purpose is clearly to prevent arbitrary expulsions. On the other hand, it entitles each alien to a decision in his own case and, hence, article 13 would not be satisfied with laws or decisions providing for collective or mass expulsions. This understanding, in the opinion of the Committee, is confirmed by further provisions concerning the right to submit reasons against expulsion and to have the decision reviewed by and to be represented before the competent authority or someone designated by it.71 70

71

International Law Association, Declaration of Principles of International Law on Mass Expulsion, 62nd conference of the ila, Seoul, 24–30 August 1986, Conference Report 1986, Principle 17. Human Rights Committee, General Comment No. 15 of 1 April 1986, para. 10.

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The Committee of Ministers of the Council of Europe specified in Twenty Guidelines on Forced Return that the “removal order shall only be issued on the basis of a reasonable and objective examination of the particular case of each individual person concerned, and it shall take into account the circumstances specific to each case. The collective expulsion of aliens is prohibited.”72 In addition, the European Court of Human Rights has stated that unless the personal circumstances of each alien subject to expulsion have been genuinely and individually considered, the procedure may violate Article 4 of Protocol No. 4 to the echr. The Court clarified: that collective expulsion is to be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group. Moreover, the fact that a number of aliens receive similar decisions does not lead to the conclusion that there is a collective expulsion when each person concerned has been given the opportunity to put arguments against [his] expulsion to the competent authorities on an individual basis.73 The ECtHR held in the case of Conka v. Belgium that: “at no stage in the period between the service of the notice on the aliens to attend the police station and their expulsion did the procedure afford sufficient guarantees demonstrating that the personal circumstances of each of those concerned had been genuinely and individually taken into consideration.”74 The African Commission on Human and Peoples’ Rights has stressed that mass expulsion of aliens is discriminatory, cannot be justified based on economic considerations and is likely to violate numerous rights and guarantees set forth in the African Charter on Human and Peoples’ Rights. In the case of Rencontre Africaine pour la Défense des Droits de l’Homme v. Zambia the African Commission expressed the view that “mass deportation of the individuals (…), including their arbitrary detention and deprivation of the right to have their cause heard, constitute a flagrant violation of the [African] Charter.”75 The 72 73

74 75

Committee of Ministers, Twenty Guidelines of Forced Return, September 2005, Guideline 3. ECtHR 23 February 1999, Vedran Andric v. Sweden, Decision as to the Admissibility of Application No. 45917/99, para. 1. See also: ECtHR 5 February 2002, Conka v. Belgium, Application No. 51564/99, para. 59. ECtHR 5 February 2002, Conka v. Belgium, Application No. 51564/99, para. 63. Rencontre Africaine pour la défense des droits de l’Homme v. Zambia, Communication 71/92, decision of African Commission on Human and Peoples’ Rights of 31 October 1997, para. 31.

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Commission also stated that: “Mass expulsions of any category of persons, whether on the basis of nationality, religion, ethnic, racial or other considerations constitute a special violation of human rights.”76 Consequently, it has to be borne in mind that although the notion of collective expulsion (mass expulsion) refers to a group of people, each case calls for an individual assessment of the situation of an alien who is subject to expulsion and who is clearly entitled to procedural guarantees against it. 4

Lawful Residence Versus the Expulsion of an Alien

International regulations such as Article 13 of the iccpr, Article 1 of Protocol No. 7 to the echr, Article 22(6) of the achr and Article 12(4) of achpr guarantee protection against arbitrary expulsion only to aliens who are lawfully in the territory of a foreign State. An alien who stays lawfully in the territory of a foreign State is considered to be formally accepted and has been given a residence permit in conformity with domestic law of that State. In opinion of the Human Rights Committee, the question of whether an alien is “lawfully” within the territory of a State is a matter governed by domestic law, which may subject the entry of an alien to the territory of a State to restrictions, provided they are in compliance with the State’s international obligations.77 In General Comment No. 15 of the Human Rights Committee of 11 April 1986, it can be read that domestic law concerning the requirements for entry and stay must be taken into account in determining the scope of that protection.78 The Committee states that a person whose case is being examined within the refugee procedure is protected by guarantees covered by Article 13 of the Covenant.79 Aliens who are illegally in the territory of a State and those who have stayed longer than the time indicated do not enjoy the protection provided for in Article 13 of the iccpr. However, if the legality of an alien’s entry or stay is in dispute, any decision on this point leading to his expulsion or deportation ought to be taken in accordance with Article 13. The Committee also considers that the notion of lawful residence refers to aliens, 76

77 78 79

Fédération internationale des ligues des droits de l’Homme v. Angola, Communication 159/96, decision of African Commission on Human and Peoples’ Rights of 11 November 1997, para. 16. Human Rights Committee, General Comment No. 27 of 2 November 1999, para. 4. Human Rights Committee, General Comment No. 15 of 1 April 1986, para. 9. Anna Maroufidou v. Sweden, Communication No. 58/1979, decision of 9 April 1981, para. 9.2.

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although illegally in the territory of a State, whose status was then regularized by the national authorities.80 The regularization of the status of an illegal immigrant means granting them the right to stay lawfully within the territory of a State.81 The way the Committee understands “lawful residence” concurs with the European Court of Human Rights case law which interprets “lawful residence” with regard to domestic law.82 The notion of lawful residence refers, thus, to the law of the State in question which lays down conditions of lawful stay of an alien within its territory. The Explanatory Report on Protocol No. 7 to the echr makes it clear that Article 1 does not apply to aliens: • who have arrived at a port or other point of entry but have not yet passed through immigration control, • who are in transit, • who have been admitted to the territory for a non-residential purpose, and • those pending a decision on a request for a residence permit.83 Another group excluded from lawful residents are those who find themselves unlawfully in the territory of a State, those whose residence permit has lost its legal validity or those who have breached other conditions prescribed by that State.84 An alien whose admission and stay were subject to certain conditions, a fixed period for example, and who no longer complies with these conditions cannot be regarded as being still “lawfully” present. Moreover, the Explanatory Report says that the condition of lawful stay is also fulfilled when an alien entered the State illegally, but then his stay was regularized.85 Nevertheless, if 80

81

82 83 84 85

Human Rights Committee, General Comment No. 27 of 2 November 1999, para. 4. See also: A. Grahl-Madsen, The Status of Refugees in International Law, Vol. II: Asylum, Entry and Sojourn, A.W. Stijthoff, Leiden, 1972, p. 348. Other common terms to be used interchangeably or inclusively are: legalization, amnesty and abolition. In Poland the most common one is “abolition” or “amnesty.” I. Wróbel, “Akcje regularyzacyjne w państwach członkowskich a prawo wspólnotowe,” in A. Gruszczyk (ed.), Regularyzacja imigrantów – doświadczenia europejskie i wnioski dla Polski, Materiały Robocze nr 1(13), 2008, p. 10. ECtHR 13 January 1993, Voulfovitch and Oulianova v. Sweden, Application No. 19373/92. Explanatory Report on Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ets, No. 117, para. 9. M.A. Nowicki, Wokół Konwencji Europejskiej. Krótki komentarz do Europejskiej Konwencji Praw Człowieka, 2006, p. 316. Explanatory Report on Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ets, No.117, para. 9.

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an alien applied for an extension of his residence visa before its expiry date but the application has not been processed under various formal pretexts, such stay is still considered lawful.86 86

ECtHR 5 October 2006, Bolat v. Russia, Application No. 14139/03, para. 77. See: S. Peers, eu Justice and Home Affairs Law, Oxford University Press, 2011, p. 515.

chapter 2

The Concept and the Development of the Right of an Alien Lawfully in the Territory of a State to be Protected against Arbitrary Expulsion 1

Historical Background

The Evolution of the Protection of an Alien against Arbitrary Expulsion This chapter attempts to provide a detailed description of the evolution of the international law concerning protection of lawful aliens against arbitrary expulsion. Aliens throughout history have been treated with suspicion and distrust.1 To guarantee the protection of its own culture, customs, religion and political institutions, a host State developed a feeling of superiority towards aliens, forming a negative attitude towards them at the same time. Consequently, this affected the content of future legal regulations. I.L. Head notes that aliens were perceived as foolish or unfortunate enough to live beyond the protective perimeter of their own country.2 The development of the right of an alien lawfully in the territory of a State to be protected against arbitrary expulsion was a complex and lengthy process.3 The codification of the aforementioned alien’s rights has undergone a long evolution and was not formed in a single act. Without a doubt, the position of aliens was mostly

1.1

1 M.S. McDougal, H.D. Lasswell, L.-c. Chen, “The Protection of Aliens from Discrimination and World Public Order: Responsibility of States Conjoined with Human Rights,” American Journal of International Law, Vol. 70, 1976, pp. 432–433; see also: R. Lilich, The Human Rights of Aliens in Contemporary International Law, Manchester University Press, 1984, p. 5. 2 I.L. Head, “A Fresh Look at the Local Remedies Rule,” Canadian Yearbook of International Law, 1967, p. 146. 3 R. Lilich distinguishes two periods: Pre-United Nations developments and United Nations developments, during which basic human rights were being developed. The first refers to a long lasting dispute between those in favour of “national treatment” of aliens and enthusiasts  of “international minimum standard.” The latter, though, is related to the creation of the United Nations and international human rights protection the organization initiated, R. Lilich, The Human Rights of Aliens in Contemporary International Law, Manchester University Press, 1984. M. Pellonpaa, however, points to the year 1914, distinguishing two historic periods: “the pre-1914 period” and “the post-World War I period,” M. Pellonpaa, International Law and Expulsion of Aliens, Helsinki, 1984.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004265448_003

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associated with the changing economic relations among countries. The rapid growth of both land and sea-borne commerce, for example, resulted in laws concerning protection against arbitrary expulsion. One of the very first regulations granting residence to foreign merchants can be found in the Magna Carta of 1215,4 which states that “all merchants may enter or leave England unharmed and without fear, and may stay or travel within it, by land or water, for purposes of trade, free from all illegal exactions, in accordance with ancient and lawful customs.” In the 15th and 16th centuries one of the first to emphasize the importance of fair treatment of aliens was Francisco de Vitoria.5 Being of Spanish origin, he was familiar with the consequences of the Spanish conquest of the Americas. He claimed that Spaniards had the right to travel to the lands of the New World, provided they did no harm to the natives and the natives did not prevent them.6 Referring to all nations, he claimed that ill-treatment of visitors and foreigners was inhumane, while on the other hand, the right attitude towards newcomers was seen as humane.7 According to de Vitoria, a State has the right to expel an unwanted alien, but there must be a reason to justify such serious decision, as “banishment is one of the capital forms of punishment. Therefore, it is unlawful to banish strangers who have committed no fault.”8 Recognizing the right of free access to foreign countries, Hugo Grotius, in turn, acknowledged it essential to make the status of the foreigner coincide as far as possible with that of the subject of the particular State.9 He argued that permanent residence ought not to be denied foreigners who, expelled from their homes, seek refuge, provided that they submit themselves to the established government and observe any regulations which are necessary in order to avoid strife.10 He also claimed that expulsion without grounds was contradictory to civilized law of nations. 4

B. Elles, International Provisions Protecting the Human Rights of Non-citizens, United Nations, New York, 1980, E/CN.4/Sub.2/392/Rev.1, p. 2. 5 A. Roth, The Minimum Standard of International Law Applied to Aliens, Leiden, 1949, p. 27. 6 F. de Victoria, De Indis et de iure belli relectiones, The Classics of International Law, Carnegie Institution of Washington, 1917, third section, para. 386. See also: C. Tiburcio, The Human Rights of Aliens under International and Comparative Law, Martinus Nijhoff Publishers, 2001, p. 210. 7 Ibidem. 8 Ibidem., para. 387. 9 M.S. McDougal, H.D. Lasswell, L.-c. Chen, op. cit., p. 440. 10 H. Grotius, Trzy księgi o prawie wojny I pokoju, w których znajdują wyjaśnienie prawo natury I prawo narodów a także główne zasady prawa publicznego, t. 1, z jęz. łac. przeł., wstępem i przypisami opatrzył Remigiusz Bierzanek, Warszawa, 1957, p. 273.

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In the late 1600s, States began to draw up bilateral agreements on the movement, treatment and status of their citizens in the territory of another country. These treaties dealt with topics such as investment protection, friendship, commerce, navigation and consular issues. They provided for the treatment of aliens on the basis of national standard of treatment11 – called the “doctrine of equality” – which obliged granting aliens equal civil rights with nationals.12 It must be said, however, that a national standard of treatment of aliens did not mean that they had equal rights, regarding political, social and economic life in particular.13 The Friendship, Commerce, and Navigation treaties (fcn) granted foreigners the enjoyment of the rights embraced in these agreements on reciprocal basis.14 In practice, it meant that States were obliged to protect the personal property of their citizens abroad and to provide free access to courts, the right of permanent settlement, freedom of religion and worship, the right of free travel, protection from discriminatory taxes and admission to trade and industry.15 Another important step was to draw up international bilateral treaties that included a most-favoured-nation clause, which granted the nationals of a State equal rights with those any third-country citizen in the territory of the State of residence already has or will have in the future, the so-called preferential treatment.16 Nevertheless, some countries expressed the opinion that their right to expel aliens should have no restrictions. Such a conviction reflected the 18th-century view that the right of a State to expel, resulting from its sovereignty, is absolute, discretionary and should by no means be limited or controlled.17 In 1720, Spain, for instance, prohibited aliens from trading in its South American territories and ordered the expulsion of such traders without exception.18 A similar view 11 12 13

14 15 16 17 18

A. Arnold, “Aliens,” in R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol. I, Elsevier Science Publishers, Amsterdam, 1992, p. 103; See also: A. Roth, op. cit., p. 62. S. McDougal, H.D. Lasswell, L.-c. Chen, op. cit., p. 443. The equality principle does not clarify the identity of all rights of citizens and aliens. The rights of the latter are in some fields more modest, especially because of public order and national security reasons. Both international and domestic law literature enumerates the fields in which nationals of foreign States or stateless persons are treated equally with their own citizens, but provide for statutory limitations. R. Bierzanek, J. Symonides, op. cit., p. 266. D. Weissbrodt, op. cit., p. 29. R. Bierzanek, J. Symonides, op. cit., p. 266; See also: A. Klafkowski, op. cit., p. 270. Ch. de Boeck, “L’expulsion et les difficulties internationals qu’en soulève la pratique,” Recueil des cours, Vol. 18 (1972-III), p. 472; See also: M. Pellonpaa, op. cit., p. 45. J. Irizzary y Puente, “Exclusion and Expulsion of aliens in Latin America,” American Journal of International Law, Vol. 36, 1942, p. 253.

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was shared by the famous 18th-century jurist Sir William Blackstone, who claimed that a State is not prevented from expelling an alien at any time.19 It was not until 1826 that a law to order the deportation of an alien lawfully in England, even when he had committed no offence, was rescinded.20 The industrial, urban and economic development, as well as the actual flow of people through borders at the turn of 18th and 19th centuries, led to a modification of this approach. The Development of the Right of an Alien to be Protected against Arbitrary Expulsion in 19th and 20th Centuries The 19th and 20th centuries witnessed a rapid development of the rights of an alien. International jurisprudence and contemporary practice provide a rich source of examples of how the idea of alien expulsion evolved. In the case of a summary expulsion from Haiti of the American Eugene Wiener in 1894, the American authorities held that:

1.2

• no State should expel a citizen of a friendly power from its territory without establishing by proofs that there are grounds for the expulsion; • the expelled person must be notified about charges against them and allowed an opportunity to defend and present arguments against their expulsion during a hearing or a trial.21 Moreover, in 1907, the us State Department declared that the Government of the United States neither questioned nor denied the sovereign right of a State to expel undesirable aliens. It must be emphasized, however, that the abovementioned right needed to be properly and convincingly justified. Otherwise, lawful residence in a receiving country would not be safe, since expulsion might at any time deprive an alien of permanent residence status. Therefore, exercising of the right must be on a limited basis.22 To illustrate this, it is worth quoting some decisions of arbitral tribunals. In the Boffolo case of 1903, pending before the Italian-Venezuelan Claims Commission, umpire Ralson ruled that a country has a general right to expel, but the expulsion should be resorted to only in extreme cases and must be accomplished in the least harmful (to the person affected) manner possible. 19 R. Plender, International Migration Law, Leiden, 1972, pp. 40–42. 20 Ibidem., p. 45. 21 R. Plender, International Migration Law, second ed., Martinus Nijhoff Publishers, Dordrecht, 1988, p. 461. 22 M. Pellonpaa, op. cit., p. 46.

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The State that exercises this right is obliged to indicate the reason for expulsion before an international tribunal.23 In the Paquet case, however, it was stated that refusal of the expelling State to give explanations justifying its decision means that it was an arbitrary act of the State.24 Furthermore, leading countries started to take action to guarantee protection to their citizens staying abroad. This is what gave birth to diplomatic protection an early proponent of which was Emer de Vattel, an acknowledged Swiss lawyer. In his work The Law of Nations of 1758, he emphasized that a State as a sovereign subject has the right to protect its citizens regardless of their whereabouts. He assumed that injury inflicted on an alien is injury inflicted on the country they came from. “Whoever uses a citizen ill, indirectly offends the State, which is bound to protect this citizen; and the sovereign of the latter should avenge his wrongs, punish the aggressor, and, if possible, oblige him to make full reparation; since otherwise the citizen would not obtain the great end of the civil association, which, is safety.”25 At the beginning of 19th century, the so-called “minimum standard” of the treatment of aliens26 was developed as a response to the need expressed by Western European countries and the usa. The countries in question not only applied the standard in their own interactions, but also aimed at promoting it among countries whose administrative and legal systems were less developed. The international minimum standard27 is based on the assumption that an alien should be granted a certain set of rights which States, regardless of their domestic legislation and practices, must respect when treating foreign  nationals. It guarantees, as A. Roth said, protection of an alien’s life, freedom and property, and access to court and means of redress. It may not seem much, but from the viewpoint of international law, it gives an alien the status of an individual.28 The concept of minimum standard assumes, 23 24 25 26 27

28

Boffolo (Mixed claims Commission Italy-Venezuela), 1903, United Nations Reports of International Arbitral Awards, Vol. X, p. 531. Paquet (Mixed claims Commission Belgium-Venezuela), 1903, United Nations Reports of International Arbitral Awards, Vol. IX, p. 325. E. de Vattel, The Law of Nations, quotation from R. Lilich, op. cit., p. 9; See also: D. Weissbrodt, op. cit., p. 25. R. Arnold, op. cit., pp. 103–104. The international minimum standard was known as “standards of more advanced States,” “ordinary standards of justice.” The variety of terms reflects the fact that there was no agreement on the wording of the proposed standard. See: G.S. Goodwin-Gill, International Law and Movement of Persons between States, Clarendon Press, Oxford, 1978, p. 58. A. Roth, op. cit., p. 191; See also: D. Vagts, “Minimum Standard,” in R. Bernhardt (ed.), Encyclopedia of Public International Law, Vol. I, Elsevier Science Publishers, Amsterdam,

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moreover, that a State shall not avoid responsibility for inhumane treatment of aliens, arbitrary expulsion in particular. Although various attempts were made to define the standard in accordance with customary law, no consensus was reached. In the second half of the 19th century, a Belgian jurist, G. Rolin-Jacquemyns, defined a rule which stated that an expelled alien should be granted the double status of being human as well as being a citizen of another State.29 On the one hand, as a human being, he has the right to be exempt from harsh treatment and violation of his interests. On the other, however, being a national of another State, he has the right to invoke the protection of his country against excessively rigorous treatment and confiscation of his property. It was then formulated that if a State expels an alien in an unjust manner, the State of their nationality has the right to base a claim on the expulsion as a violation of international law.30 The case of Scandella of 1898 could serve as an example. The United States protested against the way its citizen was expelled by the Government of Venezuela. Mr. Scandella was quickly arrested, put into prison and denied communication with his family and the hearing he was entitled to. He was then deported to Trinidad. In the meantime, in Venezuela, his property was seized and family left with no funds. The us Government had to intervene and the Venezuelan authorities agree to pay compensation of usd 1600 in American gold. After the incident, the us Secretary of State noted that the expulsion should not be humiliating, since its purpose is not to humiliate and cause inconvenience to an alien lawfully in the receiving State.31 Without a doubt, the development of diplomatic protection was a significant step forward in shaping protection against arbitrary expulsion. It needs to be stressed, however, that the doctrine was mostly against the arbitrary expulsion of aliens. At the end of 19th century, the jurisprudence called for implementation of minimum guarantees to protect aliens against expulsion on arbitrary grounds. During the sessions of the Institute of International Law in Lausanne (1888), Hamburg (1891) and Geneva (1892) it was stated that the right of a State to expel an alien is subject to certain limitations, especially the principle that “expulsion must be carried out with full consideration, in accordance with the requirements of humanity and respect for 1992, pp. 382–383; E.M. Borchard, “The Minimum Standard of the Treatment of Aliens,” Michigan Law Review, Vol. 38, No. 4, 1940. 29 R. Plender, International Migration Law, second ed., Martinus Nijhoff Publishers, Dordrecht, 1988, pp. 469–470. 30 Ibidem. 31 Ibidem., p. 470.

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acquired rights.”32 While enjoying the right to expel, a State must always, as far as possible, try to reconcile its duty to keep order in its territory and to ensure its own internal and external security with the need to respect the law of humanity, the human rights of every individual and the principle of freedom of relations between nations.33 On these grounds, a sovereign right of a State must not aim at abolishing the rights aliens are entitled to. Therefore, basic rules, part of an international standard applied in case of an expulsion, were specified. These are: • retaliation or retorsion does not constitute a valid ground for expulsion; • expulsion must never be ordered for personal gain, to prevent legitimate competition or to halt a just claim or an action or appeal that has been filed in the proper manner with the courts or competent authorities; • expulsion is not a punishment and an individual’s particular situation must be taken into account during its execution; • the decision to expel must be communicated to the person concerned; • the grounds for expulsion must be assessed reasonably, taking into account the facts, and must be carried out according to existing law; • expulsion should be, as far as possible, communicated to the government of the State that the expelled person is from.34 This limited catalogue of protective guarantees suggested by international legal doctrine was the next stage on the way to further legal regulations.35 At the turn of the century, countries started to make agreements, guaranteeing a course of action for arbitrary expulsion in disregard of the right aliens were entitled to. It should be noted that the first regulations regarding the protection of the rights of aliens lawfully in a country who were subject to arbitrary expulsion from that country contributed to the recognition of substantive and procedural requirements for the expulsion of aliens. E.M. Borchard points out that in order to minimize the arbitrary expulsion, treaties between States stipulated that “the person expelled shall have an opportunity to clear himself of the charges against him, and that the reasons for the expulsion shall be 32 33

Annuaire de I’Institut de droit international, Vol. X, 1888–1889, session of Lausanne, p. 236. Annuaire de I’Institut de droit international, Vol. XI, 1889–1892, session of Hamburg, p. 276. 34 See: International Rules on the Admission and Expulsion of Aliens (Règles internationales sur l’admission et l’expulsion des étrangers), adopted by Institute of International Law in 1892. 35 un publication, Study on Expulsion of Immigrants, ST/SOA/22, New York, 1955, pp. 59–61.

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communicated to his state or legation with the evidence.”36 Nevertheless, even in the absence of a treaty it was held that the alien’s national government has the right to know the grounds on which the expulsion is based and to have the assurance that the reasons are valid and corroborated by proof.37 In the first half of the 20th century, in literature, there was a common view that arbitrary expulsion is contrary to international law.38 As N. Politis noted, it is paradoxical that an alien admitted to a country settles down, works and creates a situation for himself, and yet has no procedural guarantee against arbitrary expulsion.39 According to Ch. Hyde, “arbitrary action, either in the choice of the individual expelled, or in the method of expulsion, would indicate an abuse of power and point to internationally illegal action.”40 L. Oppenheim, in turn, was of the opinion that a State must not abuse its right to expel aliens by acting arbitrarily.41 Therefore, it was made clear that the expulsion of an alien for a reason or purpose other than that for which it is intended constitutes an arbitrary action. Any failure of a State to give reasons for the expulsion of an alien may be viewed as evidence of an arbitrary action as well. Consequently, it would be considered an abuse if a State exercised its right to expel an alien in an arbitrary manner. As H. Lauterpacht notes “the view that the undoubted right of expulsion degenerates into an abuse of rights whenever an alien who has been allowed to take up residence in the country, to establish his business and set up a home is expelled without just reason, and that such an abuse of rights constitutes a wrong involving the duty of reparation.”42 It is, therefore, the refusal to give reasons to the government of the foreigner affected that makes an expulsion arbitrary in nature. In G.S. Goodwin-Gill’s view, however, it is important that a requirement to give precise reasons

36

E.M. Borchard, The Diplomatic Protection of Citizens Abroad or the Law of International Claims, New York, 1915, p. 56. 37 Ibidem. 38 UN publication, Study on expulsion of immigrants, ST/SOA/22, New York, 1955, para. 105, pp. 61–62. 39 N. Politis, “Le problème des limitations de la souveraineté et la théorie de l’abus droits dans les rapports internationaux,” Académie de Droit International, Recueil des Cours, 1925, pp. 101–108. 40 Ch. Hyde, International Law Chiefly as Interpreted and Applied by the United States, Vol. 1, second ed., Boston, 1947, p. 230. 41 L. Oppenheim, International Law: A Treatise, Vol. I – Peace, sixth ed., Longmans, Green and Co., New York, Toronto, 1947, pp. 631–632. 42 H. Lauterpacht, The Function of Law in the International Community, 1966, reprinted Hamden, Connecticut: Archon Books, p. 286.

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regarding expulsion be based on “reasonable cause.”43 He concludes that although this may appear to be a detail, in fact it entails the obligation not to proceed in an arbitrary manner. In the Davidson case in 1855, for instance, the Queen’s Advocate was of the opinion that arbitrary expulsion of a British citizen who had not been charged with crime, with no previous legal proceedings, called for substantial justification. Thus, the criterion of reasonableness may be violated if a State functionary is vested with an unlimited discretionary power in the matter of expulsion, a power that has not been reviewed by an independent and impartial body.44 International Human Rights Law and its Influence on Codification of the Right of an Alien to be Protected against Arbitrary Expulsion Without a doubt, the greatest influence on codification of the right of an alien lawfully in a State to be protected against arbitrary expulsion is the international human rights law. Rapid development of international protection of human rights, which could be observed after the Second World War due to the adoption of the Charter of the United Nations of 1945, the Universal Declaration of Human Rights of 1948, the European Convention on Human Rights of 1950 and the International Covenant on Civil and Political Rights of 1966, contributed to a clear recognition that an individual is entitled to rights and freedoms  because of being a human, rather than a citizen.45 Those rights and freedoms stem from the dignity of human being, not his particular sociopolitical status. The Universal Declaration of Human Rights states that “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.” Following the idea, the European Convention on Human Rights declared expressis verbis in Article 1, that High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in the Convention. Article 2 of the iccpr, in turn, “obliges each State Party 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

1.3

43 44 45

G.S. Goodwin-Gill, International Law and Movement of Persons between States, Clarendon Press, Oxford, 1978, p. 232. Ibidem., p. 239. T. Gadkowski, “Ochrona przed dyskryminacją w stosunkach pracy w systemie Europejskiej Karty Społecznej,” in Z. Niedbała (ed.), Prawo wobec dyskryminacji w życiu społecznym, gospodarczym i politycznym, Warszawa, 2011, pp. 59–60.

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social origin, property, birth or other status.” The Human Rights Committee, emphasized that “in general, the rights set forth in the Covenant apply to everyone, irrespective of reciprocity, and irrespective of his or her nationality or statelessness.”46 Likewise, the preamble to the American Convention on Human Rights “recognizes the universal and essential nature of human rights, which are based upon attributes of the human personality and not on nationality.” Consequently, the protection of an individual encompasses all persons – in other words, it is universal in nature. Article 1 of the Convention further specifies that: “The States Parties to this Convention undertake to respect the rights and freedoms recognized herein and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition.”47 Similarly, Article 2 of the African Charter on Peoples’ and Human Rights explicitly stipulates that “Every individual shall be entitled to the enjoyment of the rights and freedoms recognized and guaranteed in the present Charter without distinction of any kind such as race, ethnic group, colour, sex, language, religion, political or any other opinion, national and social origin, fortune, birth or other status.” This provision obliges States Parties to ensure that persons living on their territory, regardless of whether they are their nationals or non-nationals, enjoy the rights guaranteed in the Charter. Along with the birth of international human rights protection, initiated by the United Nations Organization, the way rights of an alien were perceived changed. The recognition of human rights caused both the concept of national treatment and minimum standard to pale into insignificance. It was questioned whether it made sense to postulate these theories in the light of international standards of human rights on a universal scale.48 The ilc’s Special Rapporteur on State Responsibility, F. García-Amador, in his first report of 1956, claimed that these two concepts on the subject of treatment of aliens should be replaced with an international human rights standard, which was called “standard of humanity” by G.S. Goodwin-Gill.49 F. Garcia-Amador held that from then on it made no difference if a person was a national or an

46 47 48 49

Human Rights Committee, General Comment No. 15 of 1 April 1986, para. 1. For the purposes of American Convention, “person” means any human being. Z. Kędzia, Prawo cudzoziemca do ochrony…, op. cit., p. 488. G.S. Goodwin-Gill, International Law…, op. cit., pp. 63–64.

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alien: human beings as such come under the protection of international law.50 In the making of the convention on international responsibility of the State for injuries caused in its territory to the person or property of aliens, he stated that: (1) A State is under a duty to ensure to aliens the enjoyment of the same civil rights, and to make available to them the same individual guarantees are enjoyed by its own nationals. These rights and guarantees shall not however, in any case be less than the fundamental human rights recognized and defined in contemporary international instruments. (2) In consequence, in case of violation of civil rights, or disregard of individual guarantees, with respect to aliens, international responsibility will be involved only if internationally recognized fundamental human rights are affected.51 Unfortunately, a lack of enthusiasm on the part of some of the members of the International Law Commission towards F. Garcia-Amador’s approach prevented the draft convention from being adopted. According to C. Amerashinge, some of the approaches put forward by F. Garcia-Amador extended the protection of aliens more than States were able to accept.52 The right of an alien lawfully in the territory of a State to be protected against arbitrary expulsion was formulated together with the foundation of the International Covenant on Civil and Political Rights. The provision of Article 13 says that “an alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.” Discussions in the Human Rights Commission on drafting Article 13 centred around the extent of protection against arbitrary expulsion an alien should be granted, without questioning the sovereign power of a State to decide on the permissibility of residence of aliens in its territory and having regard to the desire of States to safeguard themselves against 50 51 52

F. Garcia-Amador, L. Sohn, R. Baxter, Recent Codification of the Law of State Responsibility for Injuries to Aliens, Oceana Publications, Inc., 1974. F. Garcia-Amador, “Second Report on State Responsibility,” Yearbook of the International Law Commission, 1957, p. 159, Art. 5. C. Amerashinge, State Responsibility for Injuries to Aliens, Oxford University Press, 1967, pp. 278–281.

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undesirable aliens in their territories.53 The nature of guarantees which should be accorded to aliens was elaborated upon and it was decided that the article be so drafted as to make countries which did not already provide for an appeal against an expulsion decision, adopt legislation to that effect.54 It should be mentioned that the majority of the States believed that Article 13 should strike a proper balance between the interest of the State and the protection of the alien.55 Unfortunately, the idea of an exhaustive list of substantive grounds for expulsion met with little acceptance among the delegates. Nevertheless, an agreement was reached thanks to a British proposal for the prohibition of arbitrary expulsion. A year later a concept of granting adequate and specific procedural guarantees to aliens appeared, which were to be adopted from Article 32 of the Convention Relating to the Status of Refugees.56 Analysing the drafting history of Article 13 of the iccpr, it can be said that the emphasis on fair proceedings was the primary legal tool for preventing arbitrary expulsion. As it stems from annotations to draft Article 13 prepared by the United Nations Secretariat in 1955: It was proposed that the Article should state that the grounds for expulsion of aliens lawfully in the territory of a State must have a legal basis; it should also provide that the procedure to be followed in cases of expulsion must be prescribed by law. The principle that the grounds for expulsion must be in accordance with the law was not questioned, but there was some objection that such a provision might be difficult to apply and 53

M. Nowak, u.n. Covenant on Civil and Political Rights. ccpr Commentary, second ed., N.P. Engel, 2005, pp. 290–292. 54 Annotations on the text of the draft International Covenants on Human Rights, at 31, u.n. gaor, 10th Sess., Annexes, agenda item 28 (II), u.n. Doc. A/2929, 1 July 1955, para. 64. See also: M.J. Bossuyt, Guide to the “travaux préparatoires” of the International Covenant on Civil and Political Rights, Martinus Nijhoff Publishers, 1987, pp. 267–269. 55 Ibidem. 56 Art. 32 of the Convention Relating to the Status of Refugees holds that: “1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order. 2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority. 3. The Contracting States shall allow such a refugee a reasonable period within which to seek legal admission into another country. The Contracting States reserve the right to apply during that period such internal measures as they may deem necessary.”

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might in some cases, even be inadvisable for reasons of national security. It was agreed that a decision to expel an alien was a most serious matter and should not be taken arbitrarily. Aliens must be afforded some protection against arbitrary action.57 The discussed right of an alien was also guaranteed by regional legal systems for the protection of human rights: European, American and African. Under Article 22(6) of the American Convention on Human Rights: “An alien lawfully in the territory of a State Party to this Convention may be expelled from it only pursuant to a decision reached in accordance with law.” Likewise, Article 12(4) of the African Charter on Human and Peoples’ Rights provides that: “A nonnational legally admitted in a territory of a State Party to the present Charter, may only be expelled from it by virtue of a decision taken in accordance with the law.” It must be emphasized that among the most important regional organizations are: in Europe, the Council of Europe and European Union; in America, the Organization of American States; and in Africa, the African Union. In October 1967, the Committee of Ministers of the Council of Europe, aware of problems that might arise as a result of the coexistence of European Convention on Human Rights and the iccpr, delegated the Human Rights Committee of Experts to examine the issue. In 1969, the Committee of Experts submitted a report on the differences between the rights granted by the echr and those granted by the iccpr. As a result of works carried out by the Committee of Experts to expand the catalogue of rights already included in the echr, Protocol No. 7 to the echr was drawn up on 22 November 1984. It introduced procedural guarantees relating to expulsion of aliens. According to the regulation: 1.

2.

57

An alien lawfully resident in the territory of a State shall not be expelled therefrom except in pursuance of a decision reached in accordance with law and shall be allowed: (a) to submit reasons against his expulsion, (b) have his case reviewed, and (c) to be represented for these purposes before the competent authority or a person or persons designated by that authority. An alien may be expelled before the exercise of his rights under paragraph 1. a, b and c of this article, when such expulsion is necessary in the interests of public order or is grounded on reasons of national security. Annotations on the text of the draft International Covenants on Human Rights, at 31, u.n. gaor, 10th Sess., Annexes, agenda item 28 (II), u.n. Doc. A/2929, 1 July 1955, para. 63.

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It should be emphasized that Article 1 of Protocol No. 7 to the echr applies exclusively to aliens lawfully in the territory of the State which ratified this Protocol. So far, the Protocol has been ratified by 43 Member States of the Council of Europe. Countries such as Germany, the Netherlands and Turkey have not yet ratified it. The United Kingdom, however, has not signed it at all. Some countries have submitted convenient declarations as well as their reservations.58 Both Article 13 of the iccpr and Article 1 of Protocol No. 7 to the echr are significant as far as protection of aliens is concerned, since they relate to procedural guarantees aliens are entitled to when a host State decides to expel them arbitrarily. In turn, Article 22(6) of the achr and Article 12(4) of the achpr do not prescribe any specific procedural guarantees towards the effective enjoyment of the discussed right beyond the requirement for accordance with law. However, it is commonly acknowledged that a State’s decisions towards an alien must be in accordance with international law, which sets guarantees of binding nature when deciding on and exercising an expulsion. Nevertheless, it should be noted that a decision as to whether a human being may fully enjoy his rights in the territory of that country depends on the situation of a given country.59 For instance, in 1972, President Idi Amin of Uganda ordered the expulsion from its territory of all British citizens of Asian descent and accused them of economic sabotage, even though they constituted the driving power of the Ugandan economy.60 Although most of them had lived in Uganda for years, even decades, the dictator left them no choice and confiscated their properties. The expulsion was of arbitrary nature as the accusation that all British citizens of Asian origin had sabotaged the country’s economy was never proved.61 Moreover, these people were subject to persecution because of race and could not appeal against expulsion to a competent  authority. Neither were they given any time to settle their businesses before departing from Uganda.62 The President defended his expulsion order by arguing that he had had a dream in which God told him to act as he did. As 58

59

60 61 62

Switzerland, for example, noted that if expulsion is executed as a result of a decision made by the Federal Council under Art. 70 of the Constitution on grounds of national security, an expelled person does not enjoy the rights enshrined in Art. 1 of the Protocol No. 7, even after the decision on expulsion has been executed. R. Wieruszewski, “ONZ-owski system ochrony praw człowieka,” in B. Banaszak, A. Bisztyga, K. Complak, M. Jabłoński, R. Wieruszewski, K. Wójtowicz (eds.), System ochrony praw człowieka, Kraków, 2005, p. 114. V. Dharma, F. Wooldridge, “Some Legal Questions Arising from the Expulsion of the Ugandan Asians,” International and Comparative Law Quarterly, 1974, pp. 397–425. M. Pellonpaa, op. cit., p. 70. G.S. Goodwin-Gill, International Law…, op. cit., p. 215.

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G.S. Goodwin-Gills summarized the case, “expulsion purportedly based on nationality, but in fact selective by reference to racial and ethnic criteria, clearly offends the principle of non-discrimination.”63 These dramatic events prompted the un Sub-Commission on Prevention of Discrimination of Minorities to pass a resolution advising the Commission on Human Rights to consider applying rules of international law relating to the protection of aliens and to prepare the Draft Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live.64 In 1985, the un General Assembly made this Declaration admitting that its provisions do not prejudice the rights aliens were granted by virtue of national and international law. Article 7 of the Declaration prohibits arbitrary expulsion of an alien lawfully in the territory of a State – both individual and collective – on grounds of race, colour, religion, culture, national or ethnic origin.65 In conclusion, it must be stressed that establishing universal and regional systems of human rights law by obliging States to guarantee minimum protection of individual rights and activating treaty organs responsible for monitoring human rights execution have limited the freedom States had regarding arbitrary expulsion of lawful aliens. To decide on expulsion, a State must respect domestic legislation as well as the above-mentioned international standards. 2

The Notion of the Right of an Alien to be Protected against Arbitrary Expulsion

As has already been mentioned, it is the sovereign prerogative of States to regulate the presence of foreigners in their territory. This power is not unlimited, and international human rights law places some restrictions on when and how it can be exercised. In international human rights law the right of an alien to be protected against arbitrary expulsion encompasses limitations and prohibitions which eliminate arbitrariness of individual decisions taken by officials. However, it should be indicated that Article 13 of the iccpr, Article 1 of Protocol No. 7 to the echr, Article 22(6) of the achr and Article 12(4) of the achpr do not grant protection against expulsion as such. Instead, they set forth certain procedural guarantees against arbitrary expulsion in particular. 63 Ibidem. 64 Report of the un Sub-commission on Prevention of Discrimination of Minorities, E/CN. 4/1101, E/CN, 4/Sub. 2/332, p. 22, 1972. 65 The text of the Declaration is available on the un website: http://www.un.org/ documents/ga/res/40/a40r144.htm.

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The power to expel aliens is a power which is essentially discretionary and international law operates to prescribe its extent. However, this power must not be exercised “arbitrarily.” Both theory and practice agree that if a State fails to give causes for expulsion or refuses to do so, it acts arbitrarily. Nevertheless, the question of exactly when expulsion is or becomes arbitrary has not yet been fully answered. For instance, L. Sohn and T. Buergenthal consider that the word “arbitrary” indicates “that there is a limit to an official’s discretion and that an arbitrary action constitutes, in fact, an abuse of that discretion.”66 The International Court of Justice, in turn, has described arbitrary action by a State in terms of “a willful disregard of due process” and as contrary to “a sense of juridical propriety.” The Court stated that arbitrary action is a so-called “substitution” for the rule of law.67 The International Law Commission has indicated that the “word ‘arbitrary’ is used to exclude the acts when committed for legitimate reasons, such as public health or well-being, in a manner consistent with international law.”68 It should be stressed that the term “arbitrary” is not synonymous with “illegal.”69 Moreover, the Human Rights Committee expressed the a view that “arbitrariness is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law.”70 It is also worth mentioning the view of Judge C. Trindade which he expressed in a separate opinion in Ahmadou Sadio Diallo case. He states that: “The qualification ‘arbitrary’ came to be used in order to characterize decisions grounded on simple preference or prejudice, defying any test of ‘foresee-ability’, ensuing from the entirely free will of the authority concerned, rather than based on reason, on the conception of the rule of law in a democratic society, on the criterion of reasonableness and the imperatives of justice, on the fundamental principle of equality and non-discrimination.”71 66

67 68

69 70 71

L. Sohn, T. Buergenthal, “The Movement of Persons Across the Borders,” Studies in Transnational Legal Policy, Vol. 23, Washington, d.c., American Society of International Law, 1992, pp. ix–x. Elettronica Sicula S.p.A. (elsi) (The United States v. Italy), International Court of Justice, Judgment of 20 July 1989, p. 65, para. 128. International Law Commission, Draft Code of Crimes Against the Peace and Security of Mankind (1996), Art. 18 para. (g), and Commentary (13), Yearbook of the International Law Commission, 1996, vol. II, Part Two, A/51/10. In theory, the term “arbitrary” has been elaborated, above all, in the context of arbitrary arrest and detention. Mukong v. Cameroon, Communication No. 458/1991, decision of 21 July 1994, para. 9.8. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment of the Court of International Justice of 30 November 2010, separate opinion of Judge C. Trindade, para. 108.

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The discussed right of an alien provides an individual with protection against abuse of the State’s authority to expel. Officials must not act arbitrarily or abuse the powers granted to them by their domestic law, and in all instances they must act reasonably and in good faith. Therefore, arbitrary expulsion involves expulsion without well-founded reasons in the light of international law and without observing binding procedures. In other words, an expulsion is arbitrary if it is on grounds of or in accordance with the procedures other than those established by law, or under the provision of law incompatible with human rights law. P. Hassan, when analysing the term “arbitrary” in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights found that the wording in question referred to unjust, oppressive and capricious acts of government based on subjective criteria without consideration.72 In his opinion “the reason to use the word ‘arbitrary’ was to protect individuals from both ‘illegal’ and ‘unjust’ acts.”73 The Human Rights Committee recognized that Article 13 of the iccpr regulates the procedure only, not the substantive grounds for expulsion. However, by allowing expulsion executed only “in pursuance of a decision reached in accordance with law,” its purpose is to prevent arbitrary expulsion completely.74 Likewise, the African Commission on Human and Peoples’ Rights specified that Article 12(4) of the achpr “should be read as including a general protection of all those who are subject to persecution, that they may seek refuge in another State. Article 12(4) prohibits the arbitrary expulsion of such persons from the country of asylum.”75 Additionally the International Court of Justice stressed that “an expulsion must not be arbitrary in nature, since protection against arbitrary treatment lies at the heart of the rights guaranteed by the international norms protecting human rights.”76 The protection of an alien against arbitrary expulsion can encompass three forms:

72

73 74 75

76

P. Hassan, “The World ‘Arbitrary’ as Used in the Universal Declaration of Human Rights: ‘Illegal’ or ‘Unjust’?” Harvard International Law Journal, Vol. 10, 1969, pp. 225–262. M. Nowak states that arbitrary interference contains elements of injustice, unpredictability and unreasonableness, see: M. Nowak, u.n. Covenant…, op. cit., p. 383. Ibidem., p. 254. Human Rights Committee, General Comment No. 15 of 1 April 1986, para. 10. Organisation mondiale contre la torture, Association Internationale des juristes démocrates, Commission internationale des juristes, Union interafricaine des droits de l’Homme v. Rwanda, Communications Nos. 27/89, 46/91, 49/91, 99/93, decision of African Commission on Human and Peoples’ Rights of 31 October 1996, para. 30. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment of the Court of International Justice of 30 November 2010, para. 65.

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1.

substantive protection against expulsion which interferes with private and family life; substantive protection against expulsion of an alien to a country where he will be exposed to torture or to inhuman or degrading treatment or punishment – principle of non-refoulement; procedural safeguards during expulsion procedures which include access to legal representation, right to submit the reasons against expulsion, principle of non-discrimination and right to an effective remedy.77

2. 3.

To summarize, the provisions of Article 13 of the iccpr and Article 1 of Protocol No. 7 to the echr create individual rights and corresponding obligations of States,78 under which an alien has the right to be protected against arbitrary expulsion and a State has a general obligation to ensure that right.79 The exact nature and content of State’s obligation to protect an alien against arbitrary expulsion depends on specific formulation and interpretation of the discussed right and the specific context in which this right is being invoked. Generally speaking, a State in whose territory an alien resides should ensure him effective legal protection and fulfilment of the fundamental human rights under the so-called trichotomy of obligations: obligation to protect individual human rights, obligation to fulfil individual human rights and obligation to respect individual human rights.80 77

78 79 80

P. Lorenzen, “Protection of Refugees against Expulsion or Extradition,” in Proceeding of the 2nd Colloquy on the European Convention on Human Rights and the Protection of Refugees, Asylum-Seekers and Displaced Persons, Strasbourg, 19–20 May 2000, p. 23; Expulsion of Aliens in International Human Rights Law, ohchr Discussion Paper, Geneva, September 2006, p. 1; M. Nowak, u.n. Covenant…, op. cit., p. 396; E. Koprolin, in E. Guild (ed.), Security of Residence and Expulsion. Protection of Aliens in Europe, Kluwer Law International, 2001, p. 4. By using the term “State” I refer to all States that are party to the discussed international conventions. A. Orakhelashvili, “The Position of the Individual in International Law,” California Western International Law Journal, Vol. 31, spring Issue, 2001, p. 268. A. Eide, “Realization of Social and Economic Rights and the Minimum Threshold Approach,” Human Rights Law Journal, Vol. 10, No. 1–2, 1989, p. 37; I.E. Koch, “Dichotomies, Trichotomies or Waves of Duties?” Human Rights Law Review, No. 5, 2005, p. 85.

chapter 3

The Scope of Protection against Arbitrary Expulsion from a State of Legal Residence under International Human Rights Law 1 Introduction The expulsion of aliens – though, in principle, a domestic issue – has, to a significant extent, been governed by international human rights law. As a result, States Parties to the international human rights conventions no longer enjoy absolute and uncontrolled discretion in immigration policy and have to exercise it consistently with the obligations expressed in these treaties. In this connection, it is worth drawing attention to the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live, which provides that: Nothing in this Declaration shall be interpreted as legitimizing the illegal entry into and presence in a State of any alien, nor shall any provision be interpreted as restricting the right of any State to promulgate laws and regulations concerning the entry of aliens and the terms and conditions of their stay or to establish differences between nationals and aliens. However, such laws and regulations shall not be incompatible with the international legal obligations of that State, including those in the field of human rights.1 R. Bernhardt stresses that “treaty obligations are in case of doubt and in principle not to be interpreted restrictively and in favour of State sovereignty. It is obvious that this conclusion can have considerable consequences for human rights conventions: every effective protection of individual freedoms restricts State sovereignty, and it is by no means State sovereignty which in case of doubts has priority.”2 It must be remembered that international human rights treaties guarantee the protection of an individual against governmental excesses. Thus, expulsion of an alien lawfully residing in the territory of a State 1 See: Art. 2(1) of the Declaration the Human Rights of Individuals Who are not Nationals of the Country in which They Live. 2 R. Bernhardt, “Evolutive Treaty Interpretation, Especially of the European Convention on Human Rights,” German Yearbook of International Law, vol. 42/1999, p. 12.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004265448_004

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Party to the International Covenant on Civil and Political Rights, European Convention on Human Rights, American Convention on Human Rights, African Charter on Human and Peoples’ Rights is subject to the human rights standards established in them as well as the scrutiny of the treaty monitoring bodies. The expelling State is required to strike a balance between its own interests and those of the individual concerned. It is, therefore, obliged to consider the alien’s acquired rights and reach a decision which bears a fair relationship to the facts. In other words, due consideration must be given to the interests of the individual, including his basic human rights, family and private life, property, and other connections with the host State. Expulsion supposedly based on nationality is, in fact, selective referring to race and ethnicity and as such infringes the principle of non-discrimination. Alienage cannot be used to deprive individuals of their human rights. The purpose of this chapter is, therefore, to examine the extent of the protection against arbitrary expulsion an alien lawfully residing is entitled to under international human rights law. I will investigate which substantive rights guarantee aliens the protection against arbitrary expulsion, how they are applied in practice and interpreted by the international jurisprudence and what obligations States have in this regard. It should be stressed that joining international agreements on promotion and protection of human rights as well as basic freedoms, States are obliged not only to respect the rights and freedoms included, but also to ensure their enjoyment. The International Court of Justice in its judgment on Barcelona Traction stated that “in particular, an essential distinction should be drawn between the obligations of a State towards the international community as a whole, and those arising vis-à-vis another State in the field of diplomatic protection. By their very nature the former are the concern of all States. In view of the importance of the rights involved, all States can be held to have a legal interest in their protection; they are obligations erga omnes.”3 By pointing to examples of these obligations, the Court invoked basic rights of a human being including protection against slavery and racial discrimination. The standpoint of the Institute of International Law is also worth mentioning here. In its resolution of 13 September 1989 on The Protection of Human Rights and the Principle of Non-Intervention in Internal Affairs of States it specified that every State has a common, international obligation to respect human rights in relation to the international community as a whole and that 3 Barcelona Traction (Belgium v. Spain), International Court of Justice, Judgment of 5 February 1970, paras. 33, 34.

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every State has a legal interest in the protection of human rights.4 Therefore, the general obligation to respect and ensure human rights has an erga omnes character and binds States, regardless of any circumstance or consideration, including a person’s migratory status. In this respect, it is essential to stress that when ratifying or acceding to an international treaty, States manifest their commitment in good faith to guarantee and respect the rights recognized therein. In addition, the States must adapt their domestic law to the applicable international law. According to Article 27 of the Vienna Convention on the Law on Treaties, when referring to domestic law and the observance of treaties: “a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.” The Inter-American Court of Human Rights has established the obligation of States to comply with every international instrument applicable to them under Article 2 of the achr.5 Nonetheless, the Court: considers that not only should all domestic legislation be adapted to the respective treaty, but also State practice regarding its application should be adapted to international law. In other words, it is not enough that domestic laws are adapted to international law, but the organs or officials of all State powers, whether the Executive, the Legislature or the Judiciary, must exercise their functions and issue or implement acts, resolutions and judgments in a way that is genuinely in accordance with the applicable international law.6 The International Law Commission suggested an interesting solution in relation to general, international obligations to respect human rights upon expulsion of aliens. The Special Rapporteur Maurice Kamto7 in “Draft articles 4 The Institute of International Law, Session of Santiago de Compostela, 1989; text available on the iil website: http://www.idi-iil.org/idiF/navig_chron1983.html. 5 “The American Convention establishes the general obligation of each State Party to adapt its domestic laws to the provisions of the said Convention, so as to guarantee the rights embodied therein. This general obligation of the State Party implies that measures of domestic law must be effective (the ‘effet utile’ principle). This means that the State must adopt all necessary measures to ensure that the provisions of the Convention are complied with effectively in its domestic laws, as required by Article 2 of the Convention. Such measures are only effective when the State adapts its actions to the protective norms of the Convention.” Five Pensioners v. Peru, Judgment of 28 February 2003, Series C, No. 98, para. 164. 6 Inter-American Court of Human Rights, Advisory Opinion OC-18/03 of September 17, 2003, Juridical Condition and Rights of the Undocumented Migrants, para. 171. 7 Official Records of the General Assembly, 59th Session, Supplement No. 10 (A/59/10), para. 364.

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on protection of the human rights of persons who have been or are being expelled” noted that States have a general obligation to respect human rights of persons who are being expelled.8 He tried to define a so-called “hard core of rights,” inviolable rights that need to be guaranteed to every person subject to expulsion. These were: • • • • •

the right to life; the right to dignity; the principle of non-discrimination; the right to family life; the right not to be subjected to torture or to inhuman or degrading treatment or punishment.9

In 2009 during its 61st session, the International Law Commission stated that there was a need to present the expelling State’s obligations which stem from human rights. Such obligations mostly relate to certain procedural guarantees as well as legal remedies that must be available to persons facing expulsion.10 M. Kamto expressed the view that the following catalogue of obligations on States can be distinguished among all the rights that aliens are entitled to: • obligation to respect human rights of persons who have been or are being expelled; • obligation to respect dignity; • obligation not to discriminate; • obligation to protect life; • obligation to respect the right to private and family life; • obligation to protect from torture and inhuman or degrading treatment.11 To conclude, there is no doubt that an alien lawfully in the territory of a State enjoys the protection guaranteed by human rights. According to G.S. GoodwinGill, it must be emphasized that the “expulsion itself must be carried out in accordance with the general standards which international law has established

8 9 10 11

Text available on the un website: http://untreaty.un.org/ilc/documentation/english/a _cn4_617.pdf. M. Kamto, Fifth report on the expulsion of aliens, 27 March 2010, A/CN.4/611, p. 19. Report of the International Law Commission, 61st session, 2009, document A/64/10. Text available on the un website: http://untreaty.un.org/ilc/documentation/english/a _cn4_617.pdf.

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for the treatment of aliens. Due regard must, therefore, be paid to the dignity of the individual and to his basic rights as a human being.”12 2

The Right of an Alien to Respect for Private and Family Life

2.1 Introduction This subchapter examines the right to respect for private and family life, since it has been explicitly accepted both in international jurisprudence and literature that an alien residing lawfully in a host State is protected against arbitrary expulsion under his right to respect for family and private life. This right is enshrined in both international instruments and regional conventions for the protection of human rights. At the international level, Article 17 of the International Covenant on Civil and Political Rights provides that: “1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation. 2. Everyone has the right to the protection of the law against such interference or attacks.”13 Similarly, under the terms of Article 5 (1)(b), of the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live, aliens enjoy “the right to protection against arbitrary or unlawful interference with privacy, family, home or correspondence.” At the regional level, Article 8 of the European Convention on Human Rights holds that “everyone has the right to respect for his private and family life.” Interference with the exercise of this right is not permitted under paragraph 2, “except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.” In turn, the African Charter on Human and Peoples’ Rights does not contain this right, however it is deeply committed to the protection of the family, as Article 18 attaches particular importance to the State’s duty to protect the family as the “natural unit and basis of society (…) a custodian of morals and traditional values.”14 For example, the African Commission has 12 13 14

G.S. Goodwin-Gill, International Law…, op.cit., pp. 307–308. Ibidem, p. 3, para. 3. Art. 18 of the achpr: “1. The family shall be the natural unit and basis of society. It shall be protected by the State which shall take care of its physical health and moral. 2. The State shall have the duty to assist the family which is the custodian of morals and traditional values recognized by the community.”

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found that the forcible expulsion of foreigners by the Zambian Government has broken up the family unit, failing in its duties to protect and assist the family as stipulated in Articles 18(1) and 18(2) of the Charter.15 Article 11(2) of the American Convention on Human Rights,16 in turn, establishes this right in the same terms as Article 17 of the iccpr, quoted above. D.A. Martin stresses that: “recent years have seen rapid development of case law considering whether or to what extent explicit human rights norms relating to the family now constrain (…) expulsion decisions. The most extensive protections of this sort have developed under Article 8 of the European Convention for Human Rights.”17 The right to respect for family and private life under Article 8 of the echr has had a significant impact on strengthening protection of aliens against arbitrary expulsion. Allowing family life to develop within their borders, States may not expel one or more family members and therefore arbitrarily disrupt it. Furthermore, over the years, the European Court of Human Rights has extended the application of Article 8 to the rights of settled migrants to remain in the country they had established strong social and cultural ties with by introducing “protection by ricochet,” which allows extension of the protection of rights recognized by the European Convention to the rights that do not expressly arise under it.18 It should be emphasized that neither the International Covenant on Civil and Political Rights nor the European Convention on Human Rights provide aliens with the right to enter, remain and reside. These issues are, in principle, within the competence of States Parties. It is the sovereign prerogative of States to regulate the presence of foreigners in their territory, including their expulsion.19 However, it has been recognized that States Parties, by ratifying the European Convention on Human Rights, agree to introduce restrictions on State sovereignty in the field of immigration. The European Commission 15

16 17 18 19

Amnesty International v. Zambia, Communication No. 212/98, decision of African Commission on Human and Peoples’ Rights of 5 May 1999, para. 59. See also: John K. Modise v. Botswana, Communication No. 97/93, decision of African Commission on Human and Peoples’ Rights of 6 November 2000, paras. 93–94. Art. 11.2: “No one may be the object of arbitrary or abusive interference with his private life, his family, his home, or his correspondence, or of unlawful attacks on his honor or reputation.” D.A. Martin, “The Authority and Responsibility of States,” in A.T. Aleinikoff, V. Chetail, Migration and International Legal Norms, t.m.c. Asser Press, The Hague 2003, p. 36. F. Sudre, Konwencja Europejska o Ochronie Praw Człowieka i Podstawowych Wolności, Warszawa 1993. ECtHR 28 May 1985, Abdulaziz, Cabales and Balkandali v. The United Kingdom, No. 9214/80, 9473/81 and 9474/81, para. 67. See also: Human Rights Committee, General Comment No. 15 of 11 April 1986, para. 5.

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of Human Rights has observed that “a state which signs and ratifies the European Convention on Human Rights must be understood as agreeing to restrict the free exercise of its right under general international law, including the right to control the entry and expulsion of foreigners to the extent and within the limits of the obligations which it has accepted under that Convention.”20 M. Aguiar, Rapporteur to the Committee on Migration, Refugees and Demography of the Parliamentary Assembly of the Council of Europe, stated in the report on Non-expulsion of Long-Term Immigrants that many aliens who have been living for a long period or permanently in host countries, actually live there as “virtual nationals.”21 Despite the fact that many long-term immigrants do not have the nationality of the State in which they live, they share the culture, language, education, traditions and everyday life with its nationals and frequently have very tenuous or even non-existent links with their country of origin. They have integrated into the host society through long-standing residence and the emotional and professional links they have forged. Two categories of aliens are of particular interest here: long-term immigrants and second-generation immigrants. Such persons are no longer humanly and sociologically foreigners. In legal terms, however, they are still aliens. M. Aguiar points out that the application of expulsion measures against them would seem disproportionate.22 It would entail lifelong consequences for the expelled person, often resulting in separation from his family life and uprooting from his environment.23 What is more, such a situation is even more severe for a stateless person who does not have a passport, because he may encounter difficulties in finding a State that allows him to enter. Such an action of the State de facto constitutes “banishment” for such persons. The Protection of Private and Family Life of an Alien under Article 17 of the iccpr The Human Rights Committee has acknowledged that expulsion of an alien from a particular State can interfere with his family life. The hrc has also recognized respect for family life as a factor which can guarantee aliens, lawfully 2.2

20 European Commission of Human Rights, 30 June 1959, Application No. 434/58, X v. Sweden. 21 M. Aguiar, Explanatory Memorandum of the report of the Committee on Migrations, Refugees and Demography of the Council of Europe on the non-expulsion of long-term immigrants, 27.12.2001. 22 Ibidem. 23 Ibidem, p. 1, para. 3.

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residing in the territory of a State Party, protection against arbitrary expulsion under the iccpr.24 In the view of the Committee, this right shall be protected against all such interferences and attacks whether they emanate from State authorities or from natural or legal persons. In contrast to Article 8 of the echr, Article 17 of the iccpr contains no limitation clause allowing for restrictions in the interest of public order. This provision provides for the right of persons to be protected against arbitrary or unlawful interference with their privacy and family, and imposes on States Parties the obligation to adopt proper legislative and other measures in order to ensure effective protection of this right.25 It should be stressed that Article 17 of the Covenant deals with protection against both unlawful and arbitrary interference. The prohibition of “unlawful interference” means that no interference can take place except in cases envisaged by the law.26 The Committee has considered that interference authorized by States can only take place on the basis of law, which itself must comply with the provisions, aims and objectives of the Covenant.27 The prohibition of “arbitrary interference,” in turn, means that interference should only be provided for by law and should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances.28 It might seem then, that the discussed provision of the Covenant provides for broader protection than Article 8 of the echr. However, the Human Rights Committee has not yet shaped extensive and systematic case law in the field of respect for the family life of aliens facing expulsion. So far, the Committee has passed its decisions in only few cases, which makes it difficult to compare its case law with the rich judicature of the European Court of Human Rights, cited below. The notion of the family is defined in Article 23(1) of the iccpr, which says that “the family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”29 The Committee accepts that the notion of the family is a broad one and has been interpreted as including “all those comprising the family as understood in the society of the State party concerned.”30 What is more, the Committee notes that “the concept of the 24 Human Rights Committee, General Comment No. 15 of 11 April 1986, para. 5. 25 Human Rights Committee, General Comment No. 16 of 8 April 1988, para. 2. 26 Ibidem, para. 3. 27 Ibidem. 28 Ibidem, para. 4. 29 Art. 23(1) of the iccpr. 30 See: Human Rights Committee, General Comment No. 16 of 8 April 1988, para. 5.

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family may differ in some respects from State to State, and even from region to region within a State, and that it is therefore not possible to give the concept a standard definition.”31 However, the Committee emphasizes that when a group of persons is regarded as a family under the legislation and practice of a State, it must be given the protection referred to in Article 23. Consequently, States Parties should present a flexible approach. In determining which interpersonal relationships32 are covered by the protection of family under Article 17, one should analyse, above all, the law and tradition in the State concerned.33 The Committee of Human Rights recognizes that expulsion of an alien from the territory of a State can interfere with his current family life.34 Examining individual cases, the Committee considers whether the effects of the expulsion of an alien on the family are proportional to the State’s objectives regarding immigration policy. However, whether expulsion of an alien from the territory of a State violates his right to family and private life depends on a number of factors. On the one hand: the length of residence in the host State; the age of any children and the impact of expulsion on the parent; the degree of the family’s financial and emotional interdependence; the conduct of the parent; and the need to preserve the family life of the person being expelled, and on the other: the State’s interests in promoting public safety, which have to be carefully balanced in accordance with the principle of proportionality.35 The Human Rights Committee, unlike the European Court of Human Rights, does not take into consideration, in the first instance, whether the family could follow the expellee to his country of origin.36 There is no doubt that if an alien has family ties in the host State, the expulsion decision may cause interference with his family life. It should be stressed that this interference is permissible only when provided for domestic law, 31 32 33

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Human Rights Committee, General Comment No. 19 of 27 July 1990, para. 2. For example, nuclear and extended family or unmarried couples and their children or single parents and their children. Benjamin Ngambi and Marie-Louise Nebol v. France, Communication No. 1179/2003, decision of 9 July 2004. M. Nowak, for instance, emphasizes that the family in Europe is understood in a narrower sense than the “extended family” of traditional African societies. M. Nowak, u.n. Covenant…, op. cit., p. 393. Shirin Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius, Communication No. 35/1978, decision of 9 August 1981. A.T. Aleinikoff, V. Chetail, Migration and International Legal Norms, t.m.c. Asser Press, The Hague 2003, p. 18. See also: M. Nowak, u.n. Covenant…, op. cit., p. 395. W. Kälin, Limits to Expulsion under the International Covenant on Civil and Political Rights, in F. Salerno, Diritti dell’uomo estradizione ed espulsione, cedam, Padova 2003, pp. 153–154.

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meaning it cannot be arbitrary.37 This was more clearly expressed by the Committee in the Canepa v. Canada case, which concerned the expulsion of an Italian citizen – who had been living in Canada since his early childhood – on account of the offences committed.38 The author of the communication argued that his right to family life had been violated by his deportation, as it separated him from his nuclear family in Canada, consisting of his father, mother and brother, a household unit of which the unmarried alien had always been a part. The Human Rights Committee found that “arbitrariness within the meaning of article 17 is not confined to procedural arbitrariness, but extends to the reasonableness of the interference with the person’s rights under article 17 and its compatibility with the purposes, aims and objectives of the Covenant.” Moreover, the Committee expressed the opinion that “the separation of a person from his family by means of his expulsion could be regarded as an arbitrary interference with the family and as a violation of Article 17 if in the circumstances of the case the separation of the author [of the communication] from his family and its effects on him were disproportionate to the objectives of removal.”39 In that case the Committee recognized that expulsion of the alien “is seen as necessary in the public interest and to protect public safety from further criminal activity by the author [of the communication].”40 Despite the fact that the alien did not have any ties with his State of nationality and was integrated with the local society, the Committee found that he had neither spouse nor children in Canada and his family was not able to provide any help or guidance to him in overcoming his criminal tendencies and his drug addiction. In such a situation, the Committee recognized that expulsion of G. Canepa was proportional and did not violate Article 17 of the iccpr. It should be noted that in this case, the Committee in applying a balancing test had given decisive weight to the expelling State’s interest in protecting its public order in view of the seriousness of the committed crimes by the alien. In Stewart v. Canada, the Human Rights Committee expressed the opinion that “the interference with Mr Stewart’s family relations that will be the inevitable outcome of his deportation cannot be regarded as either unlawful or 37

See: Human Rights Committee, General Comment No. 16 of 8 April 1988 para. 8: “Even with regard to interferences that conform to the Covenant, relevant legislation must specify in detail the precise circumstances in which such interferences may be permitted.” 38 Canepa v. Canada, Communication No. 558/1993, decision of 3 April 1997. The author of the Communication had committed many offences, largely breaking and entering and theft, and mostly committed to get money to support his drug habit. 39 Ibidem, para. 11.4. 40 Ibidem.

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arbitrary when the deportation order was made under law in furtherance of a legitimate state interest and due consideration was given in the deportation proceedings to the deportee’s family connections.”41 The Human Rights Committee also specified that in cases where one part of a family must leave the territory of the State Party while the other would be entitled to remain: “the relevant criteria for assessing whether or not the specific interference with family life can be objectively justified must be considered, on the one hand, in light of the significance of the State party’s reasons for the removal of the person concerned, and, on the other, the degree of hardship the family and its members would encounter as a consequence of such removal.”42 Furthermore, it has been accepted that if an alien, who has been convicted of serious criminal offences or for other reasons, such as terrorist activities, constitutes a threat to national security and public order of a State Party, he may even be expelled after a fairly long period of private, family and business integration in the State of residence. Exceptions are allowed, as M. Nowak indicates, “only after the country of residence has become one’s own country as in the case of second-generation immigrants without any meaningful relation to their state of nationality, expulsion does not any more constitute a legitimate means of dealing with these persons and they should be treated in the same way as citizens who constitute a threat to a national security, i.e. by detaining them and bringing them to justice.”43 However, in the more recent case of Winata v. Australia, the Committee acknowledged that “in view of this duration of time, it is incumbent on the State party to demonstrate additional factors justifying the removal of both parents that go beyond a simple enforcement of its immigration law in order to avoid a characterization of arbitrariness.”44 Such point of view suggests that when expulsion is on grounds of violation of immigration provisions only, as opposed to criminal law convictions, and the alien’s children are affected, States will find it difficult to justify separating a family by relying solely on their interest in immigration enforcement.45 41 42

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Stewart v. Canada, Communication No. 538/1997, decision of 1 November 1996, para. 12.10. Francesco Madafferi and Anna Maria Immacolata Madafferi v. Australia, Communication No. 1011/2001, decision of 26 July 2004, para. 9; see also Byahuranga v. Denmark, Communication No. 1222/2003, decisions of 1 November 2004, para. 11.9. M. Nowak, u.n. Covenant…, op. cit., p. 396. Winata v. Australia, Communication No. 930/2000, decision of 16 August 2001, paras. 7.1. and 8. K. Jastram, “Family Unity,” in A.T. Aleinikoff, V. Chetail, Migration and International Legal Norms, t.m.c. Asser Press, The Hague 2003, p. 192.

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To summarize, the right to private and family life formulated in Article 17 of the iccpr grants aliens protection against arbitrary expulsion. In other words, if aliens have resided for a longer period of time in the territory of a State Party and have developed family ties and other links to their country of residence, they are protected by Article 17 against expulsion unless the authorities can show strong public interests in favour of their removal from the territory. Interference of a State consisting in expelling a lawful alien who has the closest family in the territory of the host State, is in conformity with the Covenant as long as it meets the above-mentioned conditions. The Protection of Private and Family Life of an Alien under Article 8 of the echr 2.3.1 The Right of an Alien to Respect for Family Life The concept of family life is an autonomous concept which is independent of any definition contained in domestic legislation. Guaranteeing the right to respect for family life, Article 8 of the echr presupposes the existence of the family as a unit. The term “family life” in Article 8 relates not only to married couples (de iure family), but encompasses other de facto “family ties” where the parties live together outside marriage and there are real ties between children and parents.46 The Court has already accepted that there is a family life between a man and woman who are not married but who have children together, as long as there is effective cohabitation. In the Al-Nashif judgment, the ECtHR arrived at general understanding of the concept of family life.47 The case concerned a stateless person of Palestinian origin, who was born in Kuwait. In 1992 he arrived in Bulgaria with his wife. The choice of Bulgaria was made because of the existing job opportunities, the relatively easy procedure for obtaining legal status, and the fact that the family had friends of Palestinian origin living there. They settled in Sofia where he ran a business. In 1995, he obtained a permanent residence permit. In the same year he contracted a Muslim religious marriage with a Bulgarian citizen. Under Bulgarian law that marriage had no legal effect. While his second wife together with her mother were living in Sofia, Mr Al-Nashif was living with his first wife and children. Then, he moved to other town, Smolyan, where from November 1998 until April 1999 he taught Islamic classes. At the beginning of 1996, his second wife also moved to Smolyan, where she stayed several months in an apartment rented by him. She often joined Mr Al-Nashif during his business trips to towns

2.3

46 47

ECtHR 26 May 1994, Keegan v. Ireland, Application No. 16969/90, para. 44. ECtHR 20 September 2002, Al-Nashif v. Bulgaria, Application No. 50963/99.

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in Bulgaria. Due to the fact that she suffered from a mental disorder, in 1996 she was hospitalized in a psychiatric clinic. Her relationship with Mr Al-Nashif ended in 1998. In 1999, Bulgarian authorities revoked the applicant’s permanent residence permit, stating that he had posed a threat to “the security or the interests of the Bulgarian State.” Consequently, he was ordered to leave Bulgaria. He was not given any additional information. The expulsion and detention decision was not subject to appeal. What is more, the expulsion decision did not give any reasons underlying the measures against him. He was immediately arrested and transferred to the detention centre in Sofia. On 4 July 1999, the applicant was deported from Bulgaria. In the application to the European Court of Human Rights, Mr Al-Nashif complained that there had been an arbitrary interference with the right to respect for his family life, contrary to Article 8 of the Convention. The Court stated that there were no exceptional circumstances capable of destroying the family ties between the applicant and his children. The applicant did not divorce his first wife and continued living in Smolyan with her and their two children until his arrest in 1999. There was no decisive evidence supporting the Government’s allegation that the applicant and his second wife lived together in Smolyan. In this case, it is undisputed that the applicant and his first wife, who were stateless persons, were lawful residents in Bulgaria, granted a permanent residence permit. The couple had moved to Bulgaria in 1992, soon after their marriage, and lawfully established their home there. Their children were born in Bulgaria, acquired Bulgarian nationality, and started school there. Therefore, the Court recognized that the deportation of Mr Al-Nashif in 1999 interfered with his family life. Defining the notion of family life, in this case, the Court noted that: The existence or non-existence of family life is essentially a question of fact depending upon the reality in practice of close personal ties. Nevertheless, it follows from the concept of family on which Article 8 is based that a child born of a marital union is ipso jure part of that relationship; hence, from the moment of the child’s birth and by the very fact of it, there exists between him and his parents a bond amounting to ‘family life’ which subsequent events cannot break save in exceptional circumstances. In so far as relations in a couple are concerned, ‘family life’ encompasses families based on marriage and also de facto relationships. When deciding whether a relationship can be said to amount to ‘family life’, a number of factors may be relevant, including whether the couple live together, the length of their relationship and whether they have

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demonstrated their commitment to each other by having children together or by any other means.48 From this judgment, the Court does not seek to define “family life” in narrow terms. Despite the fact that “family life” clearly encompasses the bond between children and their parents and the relationship between married or unmarried couples, it may also cover the relationship between other persons, irrespective of whether or not their relationship is defined by legal or genetic ties. In the case of Marckx, the European Court decided that the bond between near relatives, namely between child and grandparents falls within the scope of family life, since such relatives may play a considerable role in family life.49 The Court also stressed that “respect” for family life so understood implies an obligation for the State to act in a manner calculated to allow these ties to develop normally.50 Furthermore, the Court distinctly stated that family life exists between members of nuclear family, that is, spouses, parents and minor children.51 Analysing the issue of the relations between family members, the Court has several times presupposed the existence of “family life” even though there was no cohabitation.52 Family ties, though, should be determined by certain level of intimacy and involve regular visits. As has been emphasized, the notion of family life not only relates to married couples, but also to unmarried couples (de facto relationships) and can exist irrespective of whether these persons live together or not.53 In the case of Kroon v. The Netherlands, the Court took into consideration that “living together may be a requirement for such a relationship, exceptionally other 48 Ibidem, para. 112. 49 ECtHR 13 June 1973, Marckx v. Belgium, Application No. 6833/74, para. 45. 50 Ibidem. 51 H. Lambert, The position of aliens in relation to the European Convention on Human Rights, Council of Europe Publishing, 2007, p. 40. 52 ECtHR 21 June 1988, Berrehab v. The Netherlands, Application No. 10730/84, para. 21. “The Court likewise does not see cohabitation as a sine qua non of family life between parents and minor children. It has held that the relationship created between the spouses by a lawful and genuine marriage – such as that contracted by Mr. and Mrs. Berrehab – has to be regarded as family life. It follows from the concept of family on which Article 8 is based that a child born of such a union is ipso jure part of that relationship; hence, from the moment of the child’s birth and by the very fact of it, there exists between him and his parents a bond amounting to family life, even if the parents are not then living together.” 53 ECtHR 28 May 1985, Abdulaziz, Balkandali and Cabales v. The United Kingdom, Application Nos. 9214/89, 9473/81 and 9474/81, para. 62.

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factors may also serve to demonstrate that a relationship has sufficient constancy to create de facto family ties.”54 However, in the Cabales v. The United Kingdom case, in which applicants argued that that they believed themselves to be married and that they genuinely wished to cohabit and lead a normal family life, the Court recognized that this relationship was sufficient to attract the application of Article 8 of the echr.55 In the case of Ǘner v. The Netherlands, the Court also agreed that the expulsion of an unmarried partner of a Dutch woman constituted interference with the applicant’s right to respect for his family life.56 The definition of family life under Article 8 of the Convention implies that children from the moment of their birth – and by the very fact of it – constitute, together with their parents, a family.57 Such a natural family relationship is not terminated by the parents’ separation or divorce as a result of which the child ceases to live with one of its parents.58 In accordance with jurisprudence of the ECtHR, natural family bonds between father or mother and a child (Article 8 makes no distinction between legitimate and illegitimate child) are so important that even though family life (living together) has ceased to exist for various reasons, further relations between them are desirable and should not be limited. Therefore, there is the need to make sure that divorced parents have real ties with their child. The Court stressed that such ties only exist if a divorced parent who was not vested with the custody of the child regularly visits his child and remains in contact with them.59 In Berrehab v. The Netherlands case, the applicant – who was a Moroccan citizen – was refused to renew his residence permit in the Netherlands as a result of his divorce from a Dutch national, although he had very close relations with his daughter. The Court held that his expulsion infringed the right to respect for private and family life, as guaranteed in Article 8 of the Convention. The Court justified that this case did not concern an alien seeking admission to the Netherlands for the first time, but a person who had already lawfully lived there for several years, had a home and a job there, and against whom the government did not claim to have any complaint. Furthermore, Mr Berrehab already had real 54 55 56 57

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ECtHR 27 October 1994, Kroon v. The Netherlands, Application No. 18535/91, para. 30. ECtHR 28 May 1985, Abdulaziz, Balkandali and Cabales v. The United Kingdom, Application Nos. 9214/89, 9473/81 and 9474/81, para. 63. ECtHR of 18 October 2006, Ǘner v. The Netherlands, Application No. 46410/99, para. 61. ECtHR 28 November 1996, Ahmut v. The Netherlands, Application No. 21702/93, para. 60. See also: ECtHR 19 February 1996, Gul v. Switzerland, Application No. 23218/94, para. 32; ECtHR 1 June 2004, L. v. The Netherlands, Application No. 45582/99, para. 35. ECtHR 11 July 2000, Ciliz v. The Netherlands, Application No. 29192/95. ECtHR 21 June 1988, Berrehab v. The Netherlands, Application No. 10730/84.

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family ties there: he had married a Dutch woman, and a child had been born of the marriage.60 Thereby, the Court confirmed that the State should refrain from taking measures which prevent parents from maintaining regular contacts with their children. Under Article 8 of the echr, family ties between father and a child, despite being united only by biological kinship and are not legal ties, are protected, provided a real close family relationship exists between them. Such view is reflected in the current case law of the ECtHR, which has not excluded protection under Article 8 of the Convention, although the biological father did not acknowledge the child as his own and lived with the child’s mother out of wedlock.61 2.3.2 The Right of an Alien to Respect for Private Life Article 8 of the echr not only protects the right to respect for family life, but also the right to respect for private life of aliens. While the notion of family life refers to close, personal bonds between family members, the concept of private life involves the sphere of actions and personal, social and economic relationships of each individual. In the opinion of the European Court of Human Rights, it is not possible to define the term “private life” expressed in Article 8 of the Convention in an exhaustive manner. This notion encompasses the physical and mental integrity of a human being. It means not only the right to live the way one wishes, but also “to certain degree the right to establish and to develop relationships with other human beings, especially in the emotional field for the development and fulfillment of one’s own personality.”62 The Court has noted that “private life” includes the right of an individual to form and develop relationships with other human beings, including relationships of a professional or business nature.63 Moreover, it has expressed the opinion that “the totality of social ties between settled migrants and the community in which they are living constitutes part of the concept of ‘private life’ within the meaning of Article 8.”64 Analysing this regulation, one may claim that the Convention has not determined strict limits of this right, giving 60 Ibidem. 61 ECtHR 1 June 2004, L. v. The Netherlands, Application No. 45582/99 paras. 37–42. 62 G. Cohen-Jonathan, “Respect for Private and Family Life,” in R. Macdonald, F. Matscher, H. Petzold, The European System for the Protection of Human Rights, Dordrecht 1993, pp. 406–407. 63 ECtHR 7 August 1996, Chorfi v. Belgium, Application No. 21794/93, para. 25; See also: ECtHR 16 December 1992, Niemietz v. Germany, Application No. 13710/88, para. 29. 64 ECtHR 20 September 2011, A.A. v. The United Kingdom, Application No. 8000/08, para. 49.

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the decisive role to the European Court of Human Rights to establish interpretative standards in this field. It should be noted that the right to private life in expulsion cases is often considered together with the right to family life. When immigrants cannot bring a claim to respect for their family life due to its non-existence or because it is being questioned, they may additionally invoke their right to private life.65 This may be illustrated by reference to the case of Moustaquim v. Belgium. The Belgian Government had expressed doubts as to whether any real family life existed between the applicant and his parents at the time of the former’s deportation, since he had run away several times and had been imprisoned. The Court claimed that the fact the applicant had lived in the same State as his parents and had never broken off relations with them was sufficient to acknowledge that the expulsion had interfered with his family life.66 However, two judges expressed dissenting opinions. They stated that attention must be drawn at the outset to the danger of misusing the concept of interference with “family life” in cases concerning the persecution and punishment of criminal activities.67 Unfortunately, they didn’t explain what they meant by this “misuse.” What is more remarkable, they did not address the fact that even if the applicant’s family life had not been sufficiently established, certainly his private life was at issue and required protection under Article 8.68 In his concurring opinion in Beldjoudi v. France, the Judge S. Martens argued that an alien could be integrated in the host State without having family life. The totality of social ties between the alien and the community he was living in should be taken into consideration as part of the concept of private life, within the meaning of Article 8 of the Convention.69

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For instance: ECtHR 26 September 1997, El Boujaidi v. France, Application No. 25613/94, para. 33; ECtHR 21 October 1997, Boujlifa v. France, Application No. 25404/94, para. 36. ECtHR 19 February 1991, Moustaquim v. Belgium, Application No. 12313/86, para. 36. The case concerned a Moroccan citizen, who arrived in Belgium with his mother in 1965 as a child, in order to join his father, who had emigrated earlier. He lived there over twenty years having a residence permit. He barely knew the Arabic language. He was convicted on a charge of minor crimes several times. Dissenting opinions of Judges D. Bindschedler-Robert and N. Valticos. P. van Dijk, “Protection of ‘Integrated’ Aliens Against Expulsion under the European Convention on Human Rights,” European Journal of Migration Law, No. 1, 1999, p. 299. ECtHR 26 February 1992, Beldjoudi v. France, Application No. 12083/86; concurring opinion of Judge S. Martens, para. 3. The applicant was born in France in 1950, of parents who originated from a territory which was French at the time, namely Algeria. However, the applicant had a substantial criminal record which had been acknowledged by the

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Nevertheless, Judge J. Morenilla, in his partly dissenting opinion in the Nasri case, stated that “deportation from a country in which the person concerned has lived from birth or from childhood constitutes an interference with this private and personal sphere where it entails, as in this case, the separation of the person concerned from his essential social environment, his emotional and social circle, including his family.”70 This point of view was also supported by Judge L. Wildhaber, who acknowledged that a family-life approach is “somewhat artificial, because the element of respect of his private life is missing. In such cases, it would be more realistic to look at the whole social fabric which is important to the applicant, and the family is only part of the entire context, albeit an essential one.”71 In its landmark decision in Silvenko v. Latvia, the Court found for the first time that the right to a private life may have autonomous standing in cases regarding the expulsion of settled migrants.72 The Court took into consideration

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Court to be “much worse” than those of Mustaquim. He had spent his whole life – over forty years – in France, had received a French education and upbringing. His close relatives all kept French nationality until 1 January 1963, and had resided in France for several decades. He stated that he knew no Arabic. He had no links with Algeria apart from that of nationality. The Court claimed that the expulsion of the alien from France might imperil the unity or even the very existence of his marriage. Furthermore, the Court stressed that after his deportation, his wife would have to settle abroad, presumably in Algeria, a State whose language she did not know. To be uprooted like this could cause her great difficulty in adapting, and there might be real practical or even legal obstacles. Therefore, the decision to deport Mr Beldjoudi, was not proportionate to the legitimate aim pursued and violated Art. 8. ECtHR 13 July 1995, Nasri v. France, Application No. 19465/92, partly dissenting opinion of Judge J. Morenilla, para. 6. ECtHR 13 July 1995, Nasri v. France, Application No. 19465/92, concurring opinion of Judge L. Wildhaber. ECtHR 9 October 2003, Silvenko v. Latvia, Application No. 48321/99, paras. 96–97. This case concerned two women of Russian origin. The first applicant was born in Estonia into the family of a military officer of the Union of Soviet Socialist Republics. At the age of one month she moved to Latvia together with her parents. Her husband was transferred to Latvia in 1977 to serve as a Soviet military officer. He met the first applicant in Latvia and married her there in 1980. Until 1999, by which time she was 40 years of age, she continued to live in Latvia. She attended school there and found employment. Her daughter, the second applicant, was born in Latvia in 1981 and lived there until the age of 18, when she was compelled to leave the country together with her mother, having just completed her secondary education. It is undisputed that the applicants left Latvia against their own will, as a result of the unsuccessful outcome of the proceedings concerning the legality of

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that, regardless of the existence of a family life, the removal of persons from the State where “they had developed, uninterruptedly since birth, the network of personal, social and economic relations that make up the private life of every human being” constituted an interference with their private life.73 In Ǘner v. The Netherlands, however, the Court explicitly stated that the right to a private life may obstruct the expulsion of a settled immigrant on grounds of public order. Moreover, the Court explained the relationship between the notions of family and private life, indicating that: not all such migrants, no matter how long they have been residing in the country from which they are to be expelled, necessarily enjoy ‘family life’ there within the meaning of Article 8. However, as Article 8 also protects the right to establish and develop relationships with other human beings and the outside world (…), and can sometimes embrace aspects of an individual’s social identity (…), it must be accepted that the totality of social ties between settled migrants and the community in which they are living constitute part of the concept of ‘private life’ within the meaning of Article 8. Regardless of the existence or otherwise of a ‘family life’, therefore, the Court considers that the expulsion of a settled migrant constitutes interference with his right to respect for private life. It will depend on the circumstances of the particular case whether it is appropriate for the Court to focus on the ‘family life’ rather than the ‘private life’ aspect.74 Such a point of view was also reiterated in Omojudi v. The Netherlands.75 Therefore, the ECtHR has gradually extended the application of Article 8 of the echr to expulsion cases, putting an emphasis on the protection of the right to develop relationships inside and outside the family. Nevertheless, whether it is appropriate for the Court to focus on the “family life” rather than “private life” aspect will depend on the circumstances of a particular case.76

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their stay in Latvia. The Latvian authorities deported that family in implementation of the Latvian-Russian treaty on the withdrawal of Russian troops. The Court noted that the applicants had spent virtually all their lives in Latvia. Ibidem, para. 97. ECtHR 18 October 2006, Ǘner v. The Netherlands, Application No. 46410/99, para. 59. ECtHR 24 November 2009, Omojudi v. The United Kingdom, Application No. 1820/08, para. 37. ECtHR 20 September 2011, A.A. v. The United Kingdom, No. 8000/08, para. 49.

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2.3.3

The Extent of Permissible Interference with Family and Private Life under Article 8 of the echr It should be stressed that the scope of protection prescribed by Article 8 of the echr does not have an absolute character, since it permits interference with the private and family life which relies on limiting this right according to paragraph 2 of Article 8.77 In other words, the interference of a public authority with this right is only permitted when it is in accordance with law and necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Therefore, the Court examines whether interference by the domestic authorities is in conformity with the European Convention on Human Rights by applying the detailed requirements rather than acting in an instinctive manner. In the opinion of the ECtHR, expulsion of an alien from the territory of the host State leading to break-up of family life may only constitute interference if three conditions are met.78 First, there must be a real family or private life. Secondly, the State against which the proceedings have been brought must, in fact, be the author of the violation. Thirdly, obstacles must exist against continuing a normal family life elsewhere, including the alien’s country of origin.79 In Lupsa v. Romania, the Court stated that since the applicant had indisputably integrated into Romanian society and had a genuine family life, his deportation and exclusion from Romanian territory would put an end to that integration and radically disrupt his private and family life in a way which could not be remedied by regular visits of his girlfriend and their child.80 77 78 79 80

ECtHR 31 July 2008, Darren Omoregie and others v. Norway, Application No. 265/07, para. 68. H. Lambert, The position of aliens…, op. cit., pp. 40–41. ECtHR 20 March 1991, Cruz Varas v. Sweden, Application No. 15576/89. ECtHR 8 June 2006, Lupsa v. Romania, Application No. 10337/04, para. 27. In 1989, the applicant, a Yugoslav citizen, came to Romania and settled there. He lived in Romania for fourteen years and, in 1993, set up a Romanian commercial company whose main activity was roasting and marketing coffee. He also learnt Romanian and cohabited with a Romanian national from 1994, with whom had child. On 6 August 2003, the applicant, who had been abroad, came back to Romania unimpeded by the border police. The next day, however, border police officers came to his home and deported him. The applicant’s lawyer lodged an application for judicial review of the deportation order against the applicant. She submitted that she had not been served with any document declaring the applicant’s presence in Romanian territory to be undesirable. She added that the applicant had been living in Romania since 1989, had been awarded a medal for his role in the

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Determining whether the interference is in accordance with law, the Court examines whether the expulsion order has been issued pursuant to relevant domestic law. The phrase “in accordance with law” assumes that the impugned measure is prescribed in domestic law, which must be accessible and precisely formulated.81 Therefore, the Court uses the “quality of law criterion.”82 In conformity with this concept the effects of the provision are “foreseeable” if it is formulated with sufficient precision to enable any individual – if necessary with appropriate advice – to regulate his conduct.83 In addition, there must be a measure of legal protection in domestic law against arbitrary interference by public authorities with the rights safeguarded by the Convention.84 Granting public authorities unfettered, discretionary power in areas affecting fundamental rights would be contrary to the rule of law.85 Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference. In the case of Al-Nashif, the Court found that Mr Al-Nashif’s deportation was ordered pursuant to a legal regime that does not provide necessary safeguards against arbitrariness.86 Moreover, referring to the quality of law criterion, the Court has emphasized that the requirement of “foreseeability” of the law does not go so far as to compel States to enact legal provisions listing in detail any conduct that may prompt a decision to deport an individual on national security grounds.87 Although the executive’s assessment of what kind of threat an alien poses to national security will naturally be of significant weight, “the independent authority must be able to react in cases where invoking that concept has no reasonable basis in the facts or reveals an interpretation of national security that is unlawful or contrary to common sense and arbitrary.”88 anti-communist revolt of 1989, had set up a commercial company, was supporting his family and had not in any way been a danger to national security. But the Court of Appeal rejected the application. The applicant alleged that the deportation order against him and his exclusion from Romanian territory infringed his right to respect for his private and family life secured in Art. 8 of the Convention. 81 Ibidem, para. 32. 82 ECtHR 20 September 2002, Al-Nashif v. Bulgaria, Application No. 50963/99, para. 121. 83 Ibidem, para. 119. 84 Ibidem. 85 Ibidem. 86 Ibidem, para. 128. 87 Ibidem, para. 121. 88 Ibidem, para. 124.

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In the context of protection of an alien against arbitrary expulsion under Article 8 of the Convention, analysis of whether the aim of the interference is legitimate should be carried out. Interference by a public authority with the right to respect for family and private life can be justified only on the grounds of circumstances enumerated in paragraph 2 of Article 8. These circumstances are exhaustive, which means that no other circumstances apart from those mentioned can be the basis for public authority interference in the sphere of family and private life. However, in determining whether interference is necessary in a democratic society, the Court takes into consideration the margin of appreciation that is left to the State.89 In every case, when the expulsion decision constitutes interference in the alien’s right to respect for private and family life, public authorities must demonstrate that it is “necessary in a democratic society” which implies that the interference corresponds to a pressing social need and, in particular, that it is proportionate to the legitimate aim pursued.90 It is essential that a fair balance is struck between the competing interests of the individual and of the community as a whole. In order to strike a fair balance between these two, the removal of a person should not be enforced when such a measure is disproportionate to the legitimate aim pursued. In the above-mentioned case of Silvenko v. Latvia, the Court accepted that the State failed to strike a fair balance between the legitimate aim of the protection of national security and the interest of the protection of the applicants’ rights under Article 8.91 Therefore, the applicants’ removal from the territory of Latvia cannot be regarded as having been “necessary in a democratic society.” 2.3.4

Criminal Activity of Integrated Immigrants as a Basis to Revoke the Protection Guaranteed under Article 8 of the echr 2.3.4.1 Introduction The extensive case law of the European Court of Human Rights concerning the application of Article 8 of the echr to aliens subjected to expulsion has 89

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Y. Ari, “The Margin of Appreciation Doctrine in the Jurisprudence of Article 8 of the European Convention on Human Rights,” Netherlands Quarterly of Human Rights, Vol. 16, No. 1, 1998, p. 42. See also: J. Chlebny, “Ochrona interesu publicznego a prawo cudzoziemca do pobytu w Polsce,” Europejski Przegląd Sądowy, No. 10/2007, p. 20. ECtHR 21 June 1988, Berrehab v. The Netherlands, Application No. 10730/84, para. 28. ECtHR 9 October 2003, Silvenko v. Latvia, Application No. 48321/99, paras. 122–128. “The Court was unable to accept that the applicants could be regarded as endangering the national security of Latvia by reason of belonging to the family of the first applicant’s father, a former Soviet military officer who was not himself deemed to present any such danger.”

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reflected emerging discrepancies strongly criticized by the representatives of legal doctrine.92 The key problem in this area is how to reconcile the right to expel an alien who poses a threat to public order with his right to respect for family and private life. This concerns second-generation immigrants and integrated immigrants in particular. The notion of “second-generation” immigrants refers to persons who were born in the territory of the host State and have resided there all their life, however, without obtaining the citizenship of that State.93 Above all, it encompasses the children of the immigrants born in the territory of the receiving State. R. Cholewinski indicates that the plight of these persons frequently creates conditions leading to criminality, and what is more, their situation is exacerbated when they are subjected to expulsion if found guilty of committing criminal offences.94 Therefore, a question arises as to whether aliens who have spent most of their lives in the territory of the host State, started a family there and integrated into the host society should be protected in the same way as nationals of the State by the prohibition of expulsion.95 To answer this question, the case law of the ECtHR should be examined and special attention should be given to the dissenting opinions of some judges, since they significantly differ in their opinions.96 92

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M.B. Dembour, op. cit., p. 73. See also: A. Sherlock, “Deportation of Aliens and Article 8 echr,” European Law Review, Vol. 23, No. 1, 1998, pp. 70–71; A. McHarg, “Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights,” The Modern Law Review, Vol. 62, 1999, p. 694; N. Rogers, “Immigration and the European Convention on Human Rights: Are new principle emerging?” European Human Rights Law Review, No. 1, 2003, pp. 53–54. The notion of the second-generation immigrants was originally formulated by American scholars in the half of twentieth century in order to examine the socio-cultural position of those persons who were descendants of the immigrants arrived to the usa. “Second generation” in demographic context refers to all persons born in the usa by the immigrant-generation. See: J. Widgren, “The Position of ‘Second-Generation Migrants’ in Western Europe,” Studi Emigrazione, No. 23, 1986, pp. 7–10. R. Cholewinski, Strasbourg’s…, op. cit., p. 305. In my opinion, these three requirements should be met altogether, since the length of residence in a host State cannot be identified with the integration, see: Turkish nationals in Germany, who have not totally assimilated with the German population. According to Art. 74(2) of the Rules of Court: “Any judge who has taken part in the consideration of the case by a Chamber or by the Grand Chamber shall be entitled to annex to the judgment either a separate opinion, concurring with or dissenting from that judgment, or a bare statement of dissent.” The new edition of the Rules of Court entered into force on 1 September 2012.

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2.3.4.2

Dissenting Opinions of the Judges of the ECtHR on Balancing Family Life against Expulsion on Grounds of Criminality Judge S. Martens, in his concurring opinion in Beldjoudi, found that in Europe, where the second generation of immigrants is already raising children, it is high time we asked ourselves whether the ban expressed in paragraph 1 of Article 3 of Protocol No. 497 to the echr “should not apply equally to aliens who were born and bred in a member State or who have otherwise, by virtue of long residence, become fully integrated there and, conversely, become completely segregated from their country of origin.”98 In his opinion “integrated” aliens should not be more liable to expulsion than nationals, except in extraordinary circumstances. He then stated that expulsion of an alien lawfully in the territory of a State, especially to a country where living conditions are markedly different from those of the expelling country and where the deportee, as a stranger to the land, its culture and its inhabitants, runs the risk of having to live in almost total social isolation, constitutes interference with his right to respect for his private life.99 However, instead of treating “integrated” immigrants or second-generation immigrants as a special category of aliens whose expulsion would be justified by very serious reasons, the European Court of Human Rights took the particular circumstances of the applicant into consideration. It has, therefore, been difficult to extrapolate clear principles identifying the application of Article 8 of the echr. Lack of transparent guidance has created a degree of confusion. This point is well illustrated by two cases: Mehemi v. France and El Boujaidi v. France, decided on the same day, involving the expulsion of aliens who had lived in the host State since their childhood, but had been convicted of drug offences.100 In Mehemi, the applicant was born in France and had extensive 97

Art. 3(1) of Protocol No. 4 to the echr prescribes: “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.” 98 ECtHR 26 February 1992, Beldjoudi v. France, Application No. 12083/86, dissenting opinion of Judge S. Martens, para. 2. 99 Ibidem, para. 3. It should be noted that a similar point of view was expressed by one of the members of the European Commission on Human Rights, H. Schermers in case of Beldjoudi v. France. He argued that the real reason for the inadmissibility of expulsion was the fact that the alien was second-generation immigrant. Moreover the judge stressed that the alien was so firmly integrated into his homeland – France – that deportation would inevitably destroy his private life. See: Opinion of the European Commission on Human Rights in case of Beldjoudi v. France of 6 September 1990, Application No. 12083/86. 100 ECtHR 26 September 1997, Mehemi v. France, Application No. 25017/94; ECtHR 26 September 1997, El Boujaidi v. France, Application No. 25613/94.

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family connections there and limited ties with his country of origin. He was married to an Italian woman by whom he had three children. What is more, he received all his schooling in France and lived for more than thirty years until the permanent exclusion order was enforced. Despite the fact that the applicant had participated in a conspiracy to import a large quantity of hashish into France, the Court considered that the expulsion decision was disproportionate and there had been a breach of Article 8.101 However, in El Boujaidi, an opposing conclusion was reached. The applicant had come with his family from Morocco to France at the age of seven and had had a child with a French national. He received most of his schooling in France and worked there for several years. The Court indicated that although most of his family and social ties were in France, it had not been established that he had lost all links with his country of origin. In addition, he was not a first offender and committed another crime after his permanent exclusion had been ordered. Consequently, the Court held by eight votes to one that the expulsion decision was proportionate and that there had been no violation of Article 8 of the echr.102 In the above-mentioned cases, the European Court of Human Rights repeatedly expressed its opinion considering the circumstances which should be taken into account while determining the alien’s ties with the State of residence in case of expulsion. These are: 1. 2. 3. 4. 5. 6. 7. 8. 9.

Was the alien born in the State of residence? How long has the alien stayed in the State of residence? Has the alien received his primary education in the State of residence? Does the alien speak the language of the State of residence and does he still speak the language of his State of nationality? Has the alien previously possessed the nationality of the host State? Has the alien applied for nationality of the host State? Is the alien married to a national of the host State? Does the alien have relatives in the State of residence and do they have the nationality of that State? Does the alien still have relatives living in the State of origin?

These criteria aim at determining the alien’s ties both with the State of origin and the State of residence. When a State is taking an expulsion decision of a 101 See: ECtHR 26 September 1997, Mehemi v. France, Application No. 25017/94, para. 37. 102 See: ECtHR 26 September 1997, El Boujaidi v. France, Application No. 25613/94, paras. 40–42.

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lawful alien who committed a crime, the Court weighs the above-mentioned criteria against the following factors: 1. 2.

the nature and seriousness of the offence committed by the alien; the age the alien breached the law for the first time.

It should be noted that the judgments of the ECtHR concerning the expulsion of second-generation immigrants and long-term immigrants, passed in the second half of the 1990s, raised serious doubts and were subject to criticism, both for unpredictability and uncertainty by judges and representatives of legal doctrine.103 In fact, it meant that national administrations and national courts were unable to predict whether expulsion of an integrated alien would be found acceptable or not. Some authors perceived the jurisprudence of that time as being a “lottery.”104 In his dissenting opinion in Boughanemi v. France, Judge S. Martens challenged the case-by-case approach of the Court as “a lottery for national authorities and a source of embarrassment for the Court. A source of embarrassment, since it obliges the Court to make well-nigh impossible comparisons between the merits of the case before it and those which it has already decided.”105 In Lamguindaz v. The United Kingdom, the applicant – who was a Moroccan citizen – had lawfully stayed with his parents and siblings since 1974. Meanwhile, he committed offences involving violence and the British authorities decided 103 C. Tribucio, op. cit., p. 124. See also: A. Sherlock, op. cit., p. 70, the author stresses, that in 1997 eleven applications were declared inadmissible, however six were declared admissible. 104 K. Reid, op. cit., p. 383. 105 ECtHR 27 March 1996, Boughanemi v. France, Application No. 22070/93, the dissenting opinion of Judge S. Martens. That case concerned a Tunisian citizen, who arrived in France at the age of eight and lived there as a legal resident between 1968 and 1988. His parents and his siblings resided in France and he was educated there. The applicant was convicted on a number of occasions. He was deported on the grounds of protection of public order. The deportation order was executed on 12 November 1988 but the applicant returned to France and lived there illegally. The ECtHR observed that the applicant had kept his Tunisian nationality and appeared not to show a desire to become French. In the Court’s opinion the applicant had failed to show either that he had particularly close ties with his family living in France or that he was in any way integrated in the society of that country, where he had never really worked. Therefore, the Court recognized that the applicant’s deportation was proportionate to the legitimate aims pursued. However, the Court did not take into consideration that the applicant had begun to live with the woman and recognized the child after the deportation order had been issued.

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to make a deportation order against him. The European Commission of Human Rights noted that, although he was an alien, his family and social ties were in the United Kingdom and his national status did not reflect his actual position in human terms.106 The Commission found that the expulsion constituted a hardship and was not proportionate to the legitimate aim pursued, and was therefore in violation of Article 8 of the echr.107 One of the members of this Commission stated that “by admitting aliens to their territory States inevitably accept at least some measure of responsibility. This responsibility weighs even more heavily in the case of children educated in their territory.”108 He expressed doubts as to whether modern international law permits a State to expel aliens’ children who have been raised and educated in its territory, once they become a burden.109 It is also worth quoting the opinions of Judge J. Morenilla and Judge J. De Meyer, who recognized that expulsion of an integrated alien would violate Article 3 of the echr.110 Moreover, Judge J. Morenilla stated that the deportation of undesirable immigrants would be “cruel and inhuman and clearly discriminatory action of the State in relation to nationals who find themselves in such circumstances. A State which, for reasons of convenience, accepts immigrant workers and authorizes their residence becomes responsible for 106 ECtHR 23 June 1993, Lamguindaz v. The United Kingdom, Application No. 16152/90, para. 45. In this case a settlement was reached under which the British Government revoked a deportation order against the applicant; allowed the applicant to re-enter the United Kingdom; gave the applicant indefinite leave to remain; and allowed the applicant to make an application for naturalization. 107 European Commission of Human Rights, Application No. 16152/90, Lamguindaz v. The United Kingdom, Report of the Commission of 13 October 1992, para. 48. 108 Partly concurring partly dissenting opinion of Judge H.G. Schermers, European Commission of Human Rights, Application No. 16152/90, Lamguindaz v. The United Kingdom, Report of the Commission of 13 October 1992, pp. 10–11. 109 Ibidem. 110 ECtHR 21 June 1995, Nasri v. France, Application No. 19465/92, partly dissenting opinion of Judges J. Morenilla and J. De Meyer. The applicant, an Algerian national, came to France with his family in 1965. He was deaf and dumb. Since that time he did not visit Algeria, he did not know Arabic language. Several times he was convicted of petty offences. He was also convicted of rape, laid at the origin of his deportation. The Court noted that due to alien’s handicap he could not be separated from his parents. The Court also stressed that the applicant always lived with his parents – except for certain periods when he lived with his sister. He never severed his links with them. In view of this accumulation of special circumstances, the Court recognized that the decision to deport the applicant was not proportionate to the legitimate aim pursued. It would infringe the right to respect for family life and therefore constitute a breach of Art. 8.

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the education and social integration of the children of such immigrants as it is of the children of its citizens.”111 Furthermore, Judge E. Palm in Bouchelkia v. France, said that it was difficult to accept that a country can be justified under the provisions of the Convention in expelling a second-generation migrant to his country of origin because of his behaviour while almost all his ties were with his new homeland – France.112 She stressed that “as a rule, second-generation migrants ought to be treated in the same way as nationals. Only in exceptional circumstances should a deportation of these non-nationals be accepted.”113 She indicated that the alien had been convicted of crimes he committed and served his sentence and that it should be sufficient as it is sufficient for similar crimes committed by nationals.114 In turn, Judges P. van Dijk and A. Baka in Boujlifa v. France case found: that the Court should abandon its casuistic approach to the matter and take a clear position on the question whether and to what extent so-called ‘second generation immigrants’ constitute a special category for whose deportation very serious reasons have to be advanced to make it justifiable under the second paragraph of Article 8. Failing that, the Court should at the very least, in each separate case involving a second generation immigrant, indicate in an explicit and well-reasoned way in what respects it is to be distinguished from other cases involving a ‘second generation’ immigrant in which the Court has reached a different conclusion.115 111 Ibidem. 112 ECtHR 29 January 1997, Bouchelkia v. France, Application No. 23078/93, dissenting opinion of Judge E. Palm. The applicant arrived in France at the age of two in 1972. He lived with his parents and siblings. In 1986 he met a French woman. At the age of seventeen he committed a crime of aggravated rape which gave rise to the deportation order. He was deported in 1990. Then he returned to France illegally with the sole objective of being reunited with the woman who had been his companion since 1986, with whom he had had a child in 1993 and whom he had married in 1996. The applicant argued that his wife and daughter, both of whom had French nationality, could not follow him to Algeria because of the current situation in that country. Therefore, he claimed that his private and family life could only be enjoyed in France. He did not speak Arabic and no longer had any close relatives in Algeria. However, the Court reiterated that to maintain public order States were entitled to order the expulsion of persons convicted of criminal offences. In view of the severity of the crime, the Court held that the decision to deport the alien was not disproportionate to the legitimate aim pursued. 113 Ibidem. 114 Ibidem. 115 ECtHR 21 October 1997, Boujlifa v. France, Application No. 25404/94, joint dissenting opinion of Judges A. Baka and P. van Dijk. The applicant, a Moroccan national, arrived in

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However, the above opinions of some judges of the ECtHR did not meet with the approval of the majority of the Court. What is more, in the late 1990s the Court adopted an even more restrictive approach.116 2.3.4.3 Changes in the European Court’s Approach to Integrated Aliens There came a turning point in the Court’s approach to expulsion of integrated aliens in 2001 with the ruling in Boultif v. Switzerland.117 That case concerned an Algerian national, who had come to Switzerland in 1992. After a short time he married a Swiss citizen. On 31 January 1997, the applicant was sentenced to two years’ unconditional imprisonment for robbery and damage to property. As a result, Swiss authorities refused to renew the applicant’s residence permit. The Administrative Court dismissed the applicant’s appeal against that decision, explaining that it was called for in the interests of public order and France at the age of five. He received his education in France and worked there for a short period. When he was 20, the applicant committed a number of criminal offences. He was sentenced to six years’ imprisonment for armed robbery. On account of committed offences the deportation order was made. The Court indicated that the alien did not show any desire to acquire French nationality at the time when he was entitled to do so. The Court noted that the offences committed (armed robbery and robbery), by their seriousness and the severity of the penalties they attracted, constituted a particularly serious violation of the security of persons and property and of public order. However, the alien had no family ties with Morocco, whose language he did not speak. Finally, the Court considered that the deportation order for the applicant could not be regarded as disproportionate to the legitimate aim pursued. However, Judges A. Baka i P. van Dijk noted that in “the case of Moustaquim v. Belgium, the crimes committed by the applicant were perhaps less serious, but they were more numerous. In the case of Beldjoudi v. France, the applicant had committed numerous serious offences, while in the case of Nasri v. France the list of crimes committed would seem to be more or less comparable to that of those committed by the applicant in the present case. In those three earlier cases, the Court reached the conclusion that the applicant’s deportation was disproportionate to the legitimate aim pursued. We are aware that the Court reached a different conclusion in another recent cases concerning secondgeneration immigrants, where the facts did not, in our opinion, differ, to a decisive extent, from the cases just mentioned.” 116 ECtHR declared that there was no violation of Art. 8 of the echr in the following cases: ECtHR 19 February 1998, Dalia v. France, Application No. 26102/95; ECtHR 30 November 1999, Baghli v. France, Application No. 34374/97; ECtHR 10 July 2003, Benhebba v. France, Application No. 53441/99; ECtHR 17 January 2006, Aoulmi v. France, Application No. 50278/99. 117 ECtHR 2 August 2001, Boultif v. Switzerland, Application No. 54273/00, para. 48. See also: D. Harris, M. O’Boyle, E. Bates, C. Buckley, C. Warbrick, Law of the European Convention on Human Rights, second ed., Oxford University Press, 2009, pp. 419–420. .

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security. The applicant raised the argument that he had been married to a Swiss woman, therefore, the refusal to renew the applicant’s residence permit would separate him from his wife and constituted interference with his right to respect for private and family life under Article 8 of the echr. In this case the European Court of Human Rights formulated eight criteria (so-called Boultif criteria118) which had to be taken into account to examine whether an expulsion measure was necessary in a democratic society: • the nature and seriousness of the offence committed by the applicant; • the duration of the applicant’s stay in the country from which he is to be expelled; • the time which had elapsed since the offence was committed as well as the applicant’s conduct during that period; • the nationalities of the various persons concerned; • the applicant’s family situation, such as the length of the marriage; and other factors revealing whether the couple led a real and genuine family life; • whether the spouse knew about the offence at the time when he entered into a family relationship; • whether there are children in the marriage and, if so, their ages; • the seriousness of the difficulties which the spouse would be likely to encounter in the applicant’s country of origin.119 The ECtHR then considered the extent to which the offences committed by the applicant can provide a basis for assuming that he constituted a danger to public order and security and the fact that the applicant committed no further offence since he was sentenced. Furthermore, his conduct in prison was exemplary, and indeed he was given an early release. However, the Court paid a particular attention to the possibility for the applicant and his wife to establish their family life elsewhere, outside Switzerland. It noted that the applicant’s wife was a Swiss national and had never lived in Algeria, she had no other ties with that country, and indeed did not speak Arabic. In such circumstances she could not, in the Court’s opinion, be expected to follow her husband to Algeria.120 Therefore, the European Court stated that the Swiss authorities violated Article 8 of the Convention by refusing the applicant permission to stay on in Switzerland. 118 In doctrine, also known as “guiding principles.” 119 ECtHR 2 August 2001, Boultif v. Switzerland, Application No. 54273/00, para. 48. See also: ECtHR 10 April 2012, Balogun v. The United Kingdom, No. 60286/09, paras. 43–53. 120 Ibidem, para. 53.

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As similar, quite liberal approach, was applied in subsequent cases of settled immigrants, for instance: Amrollahi v. Denmark, Keles v. Germany, Yildiz v. Austria, Sezen v. The Netherlands and Mokrani v. France.121 An unexpected turnaround occurred in 2006 when the Grand Chamber of the Court presented a new line, rejecting the application of a Turkish national in the case of Üner v. The Netherlands. The alien came to the Netherlands at the age of twelve with his mother and two brothers in order to join his father who had already been living there for ten years. During his residence he cohabited with a Dutch national. They had two children. In examining whether the expulsion of the alien was proportionate to the aim pursued, the Court reiterated the Boultif criteria and added two additional ones which should be taken into consideration: • the best interests of and well-being for the children, in particular the seriousness of the difficulties which any children of the applicant are likely to encounter in the country to which the applicant is to be expelled; and • the solidity of social, cultural and family ties with the host country and with the country of destination.122 Despite the fact that the Court indicated two further factors favourably affecting the personal situation of an alien liable to expulsion, all possible criteria would have been considered. However, the Court did not do so, since it admitted weight predominantly to one criterion only, namely the nature and seriousness of the offence committed by the alien. The applicant was convicted of manslaughter and assault. Although he had been living in the Netherlands for a long time, established a family and had very strong ties with the host State, the Court stated that the alien’s expulsion did not cause interference with his right to respect for family life under Article 8 of the echr. However, three judges expressed their dissenting opinions, in which they found that “foreign nationals – in any case those who, like Mr Üner, have been residing legally in a country – should be granted the same fair treatment and a legal status as close as possible to that accorded to nationals.”123 They stressed 121 ECtHR 11 July 2002, Amrollahi v. Denmark, Application No. 56811/00; ECtHR 27 October 2005, Keles c. Germany, Application No. 32231/02; ECtHR 31 October 2002, Yildiz v. Austria, Application No. 37295/97; ECtHR 31 January 2006, Sezen v. The Netherlands, Application No. 50252/99; ECtHR 15 July 2003, Mokrani v. France, Application No. 52206/99. 122 ECtHR 18 October 2006, Üner v. The Netherlands, Application No. 46410/99, paras. 57–58. 123 ECtHR 18 October 2006, Ǘner v. The Netherlands, Application No. 46410/99, dissenting opinion of Judges J.P. Costa, B.M. Zupančič i R. Tűrmen, paras. 5, 14, 15.

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that the objective has been set forth and reiterated in numerous instruments at European level, within both the European Union and the Council of Europe.124 They agreed that the nature and seriousness of the offence committed by the applicant was undoubtedly a factor contributing to his expulsion. But on the other hand, the judges noted that the length of the applicant’s residence in the Netherlands (seventeen years prior to his expulsion) militated in his favour. Furthermore, they indicated that almost five years had passed since the applicant last committed an offence, and his conduct in prison did not appear to have caused any problems. What is more, his partner – with whom he had been in a relationship for seven years – and children were Dutch nationals. Therefore, it seems clear that the applicant’s partner would face considerable difficulties if she were forced to move with him to a country which was completely alien to her. To summarize, these judges recognized that all the Boultif criteria with two additional criteria added by the judgment in this case, except for the nature and seriousness of the crime, indicate a violation of the right to respect for private and family life.125 Referring to the European Convention on Human Rights as a living instrument, they emphasized that it should be interpreted in the light of present-day conditions calling for a dynamic approach to case law tending towards increased protection for foreign nationals (even criminals) rather than towards increased penalties which target them specifically.126 The next step was made by the European Court of Human Rights in 2008, when a verdict in the case of Maslov v. Austria was given.127 The case concerned a Bulgarian national, who had been living lawfully in Austria with his parents and siblings since he was six. He had spent there his childhood and started his education there. The applicant was granted an unlimited settlement permit. As a juvenile he was sentenced twice for burglary. Consequently, the Vienna Federal Police Authority imposed a ten-year exclusion order on the applicant. Having regard to the applicant’s convictions, it found that it was contrary to the public interest to allow him to stay in Austria. He was deported to Bulgaria. The Grand Chamber of the Court recognized that in the case where the alien 124 The judges referred to the following documents: the conclusions of the Presidency of the Tampere European Council on 15 and 16 October 1999, Committee of Ministers Recommendation Rec(2000)15, Parliamentary Assembly Recommendation 1504(2001) and Committee of Ministers Recommendation Rec(2002)4. 125 ECtHR 18 October 2006, Ǘner v. The Netherlands, Application No. 46410/99, dissenting opinion of Judges J.P. Costa, B.M. Zupančič i R. Tűrmen, para. 15. 126 Ibidem, para. 18. 127 ECtHR 23 June 2008, Maslov v. Austria, Application No. 1638/03.

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facing expulsion was a young adult who had not yet founded a family of his own, the relevant criteria were: • the nature and seriousness of the offence committed by the applicant; • the length of the applicant’s stay in the country from which he is to be expelled; • the time elapsed since the offence was committed and the applicant’s conduct during that period; • the solidity of social, cultural and family ties with the host country and with the country of destination.128 The Court also took into consideration the age of the applicant, stressing at the same time that when assessing the nature and seriousness of the offences committed by the applicant, it was not taken into account whether he committed them as a juvenile or as an adult.129 The Court accepted that despite the fact that the applicant came of age by the time the expulsion order became final, the relationship between him – who had not started his own family – and his parents constituted “family life.” Finally, the Court considered that a settled migrant who had lawfully spent all or the major part of his childhood and youth in the host country may not be expelled save on serious grounds.130 Bearing in mind that the applicant had committed offences of a non-violent nature, which in opinion of the Court were characteristic of juvenile crime, and the length of the applicant’s lawful residence in Austria, where his family, social and linguistic ties were concentrated, as well as the lack of proven ties with his country of origin, the Court found that the expulsion order was disproportionate to the legitimate aim pursued and violated Article 8 of the Convention.131 Nevertheless, in two recent cases against the United Kingdom, the Court declined to find “family life” between an adult child and his parents. In Onur v. The United Kingdom,132 the applicant was a Turkish national who in 1989, at the age of eleven, arrived in the United Kingdom. He lived there for over nineteen years, including the formative years of his childhood and early adulthood. In 1994 he started a relationship with a British citizen. Meanwhile, he was 128 129 130 131 132

Ibidem, para. 71. Ibidem, para. 72. Ibidem, para. 75. Ibidem, paras. 100–101. ECtHR 17 February 2009, Onur v. The United Kingdom, Application No. 27319/07, paras. 43–45.

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granted a permanent residence permit. Due to his criminal conduct, he was deported to Turkey in July 2007, following a conviction for robbery, for which he was sentenced to four and a half years’ imprisonment. Moreover, following the conviction for the offence for which he was to be deported, the applicant committed a further offence, namely a road traffic offence, and subsequently failed to surrender himself to the authorities. Relying on Article 8 of the echr, the applicant complained about his deportation. He had been in a six-year relationship with a British woman with whom had a daughter. Though their relationship ended when he was imprisoned, the applicant argued that he no longer had social, cultural or family ties to Turkey. While living in the United Kingdom he did not return to Turkey once, and had no family or friends there. Moreover, his current partner had no effective connection to Turkey as she was born in the United Kingdom and never lived elsewhere. The ECtHR primarily focused on criminal activity of the applicant. Although the majority of the applicant’s criminal convictions were non-violent in nature, the Court pointed to the more serious convictions for burglary and robbery. The applicant, however, claimed that the majority of his offences were committed when he was between seventeen and eighteen years old. Nevertheless, the Court observed that he was in fact nineteen years old when he was last convicted of burglary and twenty-two when charged with robbery. It should be mentioned that the Court, in principle, accepted that the applicant had spent a significant amount of time in the United Kingdom, although it could not be said that he spent the major part of his childhood or youth there. It noted that the applicant, aged around 29 years old at the time of his deportation, had not demonstrated the additional element of dependence normally required to establish “family life” between adult parents and adult children.133 However, the Court found that the applicant enjoyed family life in the United Kingdom with his current partner and their eldest child. Therefore, the Court accepted that the applicant’s deportation interfered with his right to a private and family life but held unanimously that there had been no violation of Article 8, because, inter alia, the alien, his current partner and their very young children could have settled in Turkey without exceptional difficulties. In A.W. Khan v. The United Kingdom,134 in turn, the Court reiterated the need for additional elements of dependence in order to establish family life between parents and adult children and found that the 34-year-old applicant did not 133 Ibidem, para. 45. 134 ECtHR 12 January 2010, A.W. Khan v. The United Kingdom, Application No. 47486/06, para. 32.

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have “family life” with his mother and siblings, notwithstanding the fact that he was living with them and that they suffered from various health problems.135 It is relevant that the applicant was born in Pakistan in 1975. He came to the United Kingdom in 1978, at the age of three, as a dependent of his father. He was granted a permanent residence permit. He attended school in the United Kingdom and spent his formative years there. In 2003 he was convicted by a domestic court of involvement in the importation of 2.5 kilograms of heroin with an estimated street value of gbp 210,470 and sentenced to seven years’ imprisonment. However, he was released on 3 April 2006 because of his good conduct in prison. Shortly afterwards he received a deportation order. Bearing in mind the nature and severity of the applicant’s offence, the Secretary of State concluded that his removal from the United Kingdom would be necessary in a democratic society for the prevention of disorder and crime, and for the protection of health and morals. The alien appealed to an Immigration Judge, who dismissed the applicant’s appeal against the deportation order. The applicant submitted that his expulsion would be disproportionate and would violate his rights under Article 8 of the Convention. He pointed out that he had been in the United Kingdom since he was three and was not familiar with the culture of his country of origin. He had not returned to Pakistan and no longer had any close relatives or any social, cultural or family ties there. All of his closest family members lived in the United Kingdom. His mother and his siblings were all of poor health and he was the main person able to take care of them. The ECtHR noted, that apart from two brothers, the applicant also had three married sisters residing in the United Kingdom. The Court did not, therefore, accept that the applicant was the sole carer for his mother and brothers. What is more, while his mother and brothers undoubtedly suffered from health complaints, there was no evidence before the Court to suggest that these conditions were so severe as to entirely incapacitate them. However, the applicant informed the Court that he was in a long term relationship with a British citizen, who had given birth to a baby girl. The ECtHR noted that the applicant and his girlfriend had been in a relationship since August 2005 and the applicant legally recognized his daughter. Although the conditions of his bail prevented him from living with his girlfriend and their daughter, he contacted them on a daily basis. The Court, therefore, found that the relationship had sufficient constancy to create de facto family ties.136 The ECtHR pointed to the devastating effects of drugs on people’s lives, and approved of a firm attitude towards those who deal in drugs. The applicant’s 135 Ibidem, para. 32. 136 Ibidem, para. 35.

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offence was particularly serious as it involved the importation of a significant quantity of heroin. Since the severity of such offence must weigh heavily in the balance, the applicant was sentenced to seven years’ imprisonment. Never­ theless, the Court stressed that it also had to take into account the fact that the applicant had not previously committed any serious criminal offence in the United Kingdom, and committed no further offence following his release in June 2006. It indicated that under the approach taken in the Boultif judgment, “the fact that a significant period of good conduct has elapsed following the commission of the offence necessarily has a certain impact on the assessment of the risk which the applicant poses to society.”137 Moreover, the ECtHR accepted that the applicant had lived most of his life in the United Kingdom and established close ties with his mother and two brothers, with whom he had lived for most of his life. The applicant’s removal was likely to cause difficulties even though there was no evidence that his family would suffer significantly.138 The Court took into consideration that the applicant’s girlfriend was a British citizen, who claimed not to have lived anywhere other than the United Kingdom. She spoke neither Urdu nor Punjabi and had no family or friends in Pakistan. She also stressed that she would not be prepared to move to Pakistan if he were to be deported, although no circumstances had been identified which would inherently preclude her from living there. Therefore, taking into account, in particular, the length of time that the applicant had been residing in the United Kingdom and his very young age at the time of his entry, the lack of any continuing ties to Pakistan, the strength of his ties with the United Kingdom, and the fact that the applicant did not reoffend following his release from prison in 2006, the ECtHR found that the applicant’s expulsion from the United Kingdom would not be proportionate to the legitimate aim pursued and would violate Article 8 of the Convention. However, in the case of A.A. v. The United Kingdom139 the ECtHR changed its mind and found “family life” between the applicant, a young adult of 24, and his mother. The case concerned a Nigerian national who had come to the United Kingdom in 2000 as a child, at the age of 13, together with his two sisters, to join their mother. In 2002, he was convicted of rape, together with a group of other boys. While in four-year detention at a Young Offenders’ Institution, the applicant obtained a university degree and was granted a permanent residence permit in the United Kingdom. In August 2004, the 137 Ibidem, para. 41. 138 Ibidem, paras. 42–43. 139 ECtHR 20 September 2011, A.A. v. The United Kingdom, Application No. 8000/08.

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applicant was released from prison for good behaviour, having served approximately one year and ten months of his four-year sentence. In general, his rehabilitation was recognized as positive and he posed a low risk of re-offending or causing harm to the public. Nevertheless, he was served with a deportation order, which was based on the offence he had committed as a juvenile, in order to prevent disorder and crime and for the protection of health and morals. The applicant appealed against the expulsion order, but it was dismissed. Therefore, he complained that his deportation to Nigeria would violate his right to respect for his family and private life as provided in Article 8 of the Convention. However, as regards the applicant’s complaint under Article 8 of the Convention, the domestic judge was not persuaded that the applicant currently had family life in the United Kingdom and found that interest in the prevention of crime in that case outweighed the applicant’s right to respect for private and family life. In the Court’s opinion, the relevant factors to be considered in A.A. v. The United Kingdom were: the nature and seriousness of the offence committed by the applicant; the length of the applicant’s stay in the United Kingdom; the time which had elapsed since the offence was committed and the applicant’s conduct during that period; and the solidity of social, cultural and family ties with the host country and with the country of origin. The Court reaffirmed that the Boultif criteria which had been developed in the Üner case “are meant to facilitate the application of Article 8 in expulsion cases by domestic courts and that the weight to be attached to the respective criteria will inevitably vary according to the specific circumstances of each case.”140 The judges stressed that not all the criteria are relevant in a particular case, since it is in the first instance for the domestic courts to decide which factors are relevant and what weight to accord to each of them. However, the ECtHR indicated that “the State’s margin of appreciation in this regard goes hand in hand with European supervision and the Court is therefore empowered to give the final ruling on whether an expulsion measure is reconcilable with Article 8.”141 The Court reiterated that the above criteria are partially designed to evaluate the extent to which the applicant can be expected to cause disorder or to engage in criminal activities.142 The Court noted that the total length of the applicant’s stay in the United Kingdom was eleven years. Regarding the applicant’s ties with the United Kingdom and with Nigeria, the Court took into account that the applicant continued to reside with his mother and had close 140 Ibidem, para. 57. 141 Ibidem. 142 Ibidem, para. 63.

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relationships with his two sisters, all of whom resided in England. The applicant had completed his further education in the United Kingdom and started working. Despite the fact that the applicant spent a significant period of his childhood in Nigeria, he had not visited the country of his origin for eleven years. Furthermore, the Court noted that the British Government did not point to any concern regarding the applicant’s good conduct in seven years since his release from prison and relied solely on the seriousness of the offence to justify concerns as to his continued presence in the United Kingdom and his risk to the public.143 It was notable that he had committed no further offences. The Court pointed out that when expulsion is intended to satisfy the aim of preventing disorder or crime, the period of time which has passed since the offence was committed and the applicant’s conduct throughout that period are particularly significant.144 The Court placed particular emphasis on the importance, in cases where the deportation offence was committed by the applicant when he was a minor, of facilitating his reintegration into society. Committing an offence as a juvenile does not preclude deportation. In assessing the proportionality of deportation, the seriousness of the committed offence must be carefully weighed against the applicant’s exemplary conduct and commendable efforts to rehabilitate himself and to reintegrate into society. In such circumstances, the Court pointed out that “the Government is required to provide further support for its contention that the applicant can reasonably be expected to cause disorder or to engage in criminal activities such as to render his deportation necessary in a democratic society.”145 However, the ECtHR stressed that the Government failed to raise any concerns and did not submit any documents to support such a contention. It concluded that the applicant’s expulsion from the United Kingdom would be disproportionate to the legitimate aim of the “prevention of disorder and crime” and would constitute a violation of Article 8 of the echr. 2.3.4.4 Protection of Integrated Immigrants – Concluding Remarks It is obvious, in my opinion, that the application of expulsion measures against legal immigrants who have been living for many years in their host countries, some of whom were born or brought up there and have integrated into their host society, seems unfair and disproportionate. It happens very often that aliens who have spent their whole life, or a significant part of it in the host 143 Ibidem, para. 65. 144 Ibidem, para. 68. 145 Ibidem, para. 68.

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State, have no ties with their country of origin, except for nationality. When they break a law, the European Court of Human Rights initially must assess the nature and seriousness of the offence. The assessment of the reasons justifying an expulsion should be made in the context of the current threats which the alien poses to public order, instead of hypothetical threats based on a free margin of appreciation of the State authorities or tainted with arbitrariness. However, it should be noted that such a threat should not be a decisive circumstance when assessing whether the expulsion of an integrated alien is proportionate to the legitimate aim pursued. The criminal activity is not the domain of aliens. The citizens of a host State commit crimes as well. P. Van Dijk indicates that “criminal behavior is not something that distinguishes aliens from nationals.”146 The European Convention on Human Rights does not guarantee the right of an alien to enter or to reside in a particular country and, in pursuance of their task of maintaining public order, States Parties have the power to expel an alien convicted of a criminal offence. However, their decisions in this field cannot constitute an arbitrary interference with the right to respect for private and family life guaranteed by Article 8 of the echr. To achieve this, regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole, and States have to justify that their decisions on expulsion are necessary in a democratic society. The State of residence can point to the following circumstances: • the alien and his family members still have considerable genuine links with the State of nationality, for example, by regular visits; • the alien has voluntarily given up the nationality of that country of residence or has not made any efforts to acquire the nationality of that country; and • the crimes committed have a clear connection with the country of nationality.147 If an alien lawfully resides in the territory of a host State where his family, private and professional life have been concentrated for a number of years, and if he then commits a crime in this State, he would be convicted in criminal proceedings and would have to serve his sentence. Usually, after the alien has served his sentence, State authorities take the decision on his expulsion. In practice, expulsion serves as an additional punishment for the offence, meaning the alien suffers a double penalty. In other words, in such situations 146 P. van Dijk, Protection of “Integrated” Aliens…, op. cit., p. 310. 147 Ibidem, p. 311.

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non-nationals will be subject not only to the “normal” penalty for committing the crime, but also to the extra “sanction” of deportation.148 In the case of those aliens whose links with the country to which they are expelled are non-existent or very weak, the expulsion amounts to exile, since it removes them from their normal living environment.149 In conclusion, it should be noted that the views of the European Court of Human Rights concerning the content and the scope of the alien’s right to respect for private and family life in connection with expulsion are inconsistent. Although Article 8 of the echr provides no absolute protection against arbitrary expulsion for all categories of aliens, including those who were born in the host country or moved there in their early childhood, the Court has found that regard is to be had for the special situation of aliens who have spent most, if not all, their childhood in the host country, were brought up and received their education there. Practice shows how difficult the implementation of the alien’s right to be protected against arbitrary expulsion is. In my opinion, the factor weighing in favour of non-expulsion of lawful aliens – even those who committed crimes – is their real integration in the society of the host State, since it justifies in an objective and reasonable manner the fact that they should be treated differently from other aliens, as equal to nationals as far as protection against deportation is concerned. It is to be hoped that the Court will define the scope of the obligations of States in this issue and will try to find a solution to respect the rights of integrated aliens in the context of expulsion. It should be kept in mind that we deal almost exclusively with judge-made law since the Convention does not embody the right for aliens to remain in the State of residence. 3

Prohibition against Expelling an Individual from his own Country

The right not to be expelled from one’s own country is another relevant right which improves the protection against arbitrary expulsion of an alien who has developed such strong ties with his State of residence that he considers it his home. The discussed right has been formulated explicitly in Article 12(4) of the iccpr, which provides that “no one shall be arbitrarily deprived of the right to enter his own country.” Without a doubt, the regulation is essential for aliens, because of the scope of the notion of “own country,” not limited to the country of citizenship only.150 It should be noted that the discussed regulation caused 148 A. Sherlock, op. cit., pp. 73–74.; A. Szklanna, op. cit., pp. 262–263. 149 P. van Dijk, Protection of “Integrated” Aliens…, op. cit., p. 309. 150 W. Kälin, op. cit., p. 148.

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many problems during the travaux préparatoires.151 The early drafts of this article forwarded by France, the Netherlands and the United States referred only to citizens. The States aimed to grant protection only to those born abroad, who had never been to the country of their nationality. However, the formula seemed rather narrow, as it deprived individuals who were not nationals of a country, but established their life and business there, of the right to return. A compromise was reached thanks to a proposal put forward by Australia, whose aim was to guarantee the right to enter to individuals whose whole life was based in the host country, either by birth or a long-term or permanent residence permit. It suggested replacing the phrase “the country of which he is a national” by a wording taken from Article 13(2) of the Universal Declaration of Human Rights “his own country.”152 Article 12(4) of the iccpr, in contrast to Article 3(2) of Protocol No. 4 to the European Convention on Human Rights,153 protects not only citizens, but also aliens and stateless persons who have strong ties with the country of their residence and perceive it as their home country.154 The Human Rights Committee, in its General Comment on freedom of movement, stated that “the scope of ‘his own country’ is broader than the concept ‘country of his nationality’. It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien.”155 It also emphasized that Article 12(4) allows a broader interpretation of the personal scope of this right, encompassing long-term residents, stateless persons arbitrarily deprived of the right to acquire the nationality of the country of residence and permanent residents.156 In practice, however, the notion of “his own country” arouses many doubts. As an example, let me quote a controversial decision taken by the Human 151 M.J. Bossuyt, Guide to the “travaux préparatoires” of the International Covenant on Civil and Political Rights, Martinus Nijhoff Publishers, 1987, p. 261. 152 Ibidem, p. 261. 153 Art. 3(2) of Protocol No. 4 to the echr: “No one shall be deprived of the right to enter the territory of the State of which he is a national.” See also: H. Hannum, The Right to Leave and Return in International Law and Practice. International Studies in Human Rights, Martinus Nijhoff Publishers, Dordrecht 1987, p. 56. 154 M. Nowak, u.n. Covenant…, op. cit., p. 284. See also: S. Jagerskiold, Freedom of Movement, in L. Henkin, The International Bill of Rights. The Covenant on Civil and Political Rights, Columbia University Press, New York, 1981, p. 180. 155 Human Rights Committee, General Comment No. 27 of 2 November 1999, para. 20. 156 Ibidem.

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Rights Committee in Stewart v. Canada.157 Ch. Stewart, a British citizen, born in 1960, emigrated to Canada at the age of seven together with his mother, where they joined his father and a brother, already living there. Although the parents of the alien never claimed Canadian citizenship for him, he considered himself a citizen of that country. Between 1978 and 1991, Stewart was convicted on 42 occasions, mostly for petty offences and traffic offences and consequently the Canadian Government decided to deport him to the United Kingdom. Stewart claimed that the United Kingdom was no longer his “own country,” as his life until then had centred upon his family in Canada.158 He lived there with his mother and a disabled brother, not to mention two of his own children who lived with his ex-wife. The Committee rightly noted that the scope of the notion of “his own country” is broader than the concept “the country of his/her nationality.” It went on to try to interpret Article 12(4) together with Article 13 of the iccpr and stated that the notion of “his own country” applies to “individuals who are nationals and to certain categories of individuals who, while not nationals in a formal sense, are also not aliens within the meaning of article 13 of iccpr, although they may be considered as aliens for other purposes.”159 Eight members of the Committee questioned the notion of referring to persons who are neither nationals nor aliens, drawing attention to the fact that under international law all aliens are considered non-nationals. Some claimed that: the Committee has taken too narrow a view of Article 12, paragraph 4, and has not considered the raison d’être of its formulation. Individuals cannot be deprived of the right to enter ‘their own country’ because it is deemed unacceptable to deprive any person of close contact with his family, or his friends or, put in general terms, with the web of relationships that form his or her social environment. (…) The Covenant is here concerned with the strong personal and emotional links an individual may have with the territory where he lives (…). This is what Article 12, paragraph 4, protects.160 157 Stewart v. Canada, Communication No. 538/1993, decision of 1 November 1996. 158 Ibidem, para. 3.4. 159 Ibidem, para. 12.3. In the case of Stewart, the Committee said that Canada could not be considered to be his own country – although he spent all his life there – as he had never applied for Canadian citizenship. 160 Dissenting opinions by E. Evatt and C. Medina Quiroga, co-signed by F.J. Aguilar Urbina, supported by Ch. Chanet and P. Bhagwati, para. 5.

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There appears a question as to which category of aliens may claim that the country of their stay is their own one. The Committee named three groups: 1) persons, stripped of their nationality in violation of international law; 2) persons whose country of nationality was incorporated into or transferred to another national entity whose nationality is being denied to them; 3) immigrants who have stayed in the State of their residence for a long time and have not been granted its nationality because of unreasonable obstacles on the acquiring of nationality placed by a given State.161 Looking closely at these three categories of aliens, it must be accepted that the first two refer to stateless persons. The third, though, is limited to all those long-term immigrants who cannot acquire the nationality of the State of residence because of regulations which are too stringent. Following the interpretation adopted by the Committee, it is within its competence to examine the legitimacy of regulations of a given State Party concerning nationality. As W. Kälin says, such approach of the Committee not only interferes with the sovereign right of every State to decide freely about the conditions for granting nationality to immigrants, but can also lead to formulating a new right of an individual to be protected against an arbitrary denial of nationality; a right that was not expressed in the Covenant.162 For these reasons, the Committee should not refer to the legitimacy of domestic legal regulations concerning the acquisition of citizenship. Under Article 12(4) of the iccpr, the real, strong relationship between an alien and the State of his residence should constitute the decisive circumstance to be granted a nationality of that State. Not applying for nationality of the host country should be treated by the Committee as a failure to fulfil one requirement out of many that must be taken into consideration when evaluating an alien’s ties with the State of residence in the event of his expulsion. These requirements include: the length of stay, knowledge of language, having a family and the frequency of contact with the country of origin. The Committee admitted, however, that under Article 12(4) of the iccpr the thesis may be justified that a State Party that is under an obligation to allow entry of a person is also prohibited from expelling the person. In the discussed case, moreover, it does not have to invoke the provision since the circumstances 161 Stewart v. Canada, Communication No. 538/1993, decision of 1 November 1996, paras. 12.4 and 12.5. 162 W. Kälin, op. cit., p. 151.

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do not indicate that it will be applied.163 The Committee formulated the thesis that the right to enter one’s own country does not extend to long-term residents who, given all opportunities by the host State, have not applied for naturalization.164 The standpoint of the Committee was criticized on the part of some of its members, who argued that there were no justified reasons for such a hesitant approach by the Committee.165 What is more, they claimed that the alien considered Canada to be his own country and the decision to deport him was not based on any reasonable grounds, meaning it was of arbitrary nature and it breached Article 12(4). In conclusion, it should be assumed that the notion of “own country” should apply to both citizens and aliens,166 who, as long-term residents, have established a strong emotional and personal relationship with the host State which de facto is their homeland. Therefore, they should not be subject to expulsion. A crime committed, including its punishment, should not be taken into account when deciding whether a State of residence can be considered a homeland. If a person has strong ties with the host country, a committed crime should be punished equally, regardless of whether the person is an alien or a national. 4

The Principle of Non-Discrimination

As has already been indicated, the expulsion of aliens should be carried out in conformity with international human rights law. The right to be protected against arbitrary expulsion entails a specific manner in which expulsion is made and its implementation should not be discriminatory and must be proportional in view of all the circumstances. Exercising immigration policy, States are not allowed to distinguish between nationals and non-nationals 163 Stewart v. Canada, Communication No. 538/1993, decision of 1 November 1996, para. 12.3. 164 Ibidem, paras. 12.2 and 12.5. 165 Dissenting opinions by E. Evatt and C. Medina Quiroga, co-signed by F.J. Aguilar Urbina, supported by Ch. Chanet and P. Bhagwati, para. 2. 166 Aliens under Art. 12(4) of the iccpr are: • stateless persons and persons who were given a refugee status; • children of immigrants and immigrant workers who were born in the host State and have no ties with the country of their nationality; • immigrants who have lived for many years in the host State and broken all ties with the country of their nationality, but for some reason have not been given nationality of that State.

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unless the distinction adequately and proportionately serves the purpose of immigration policy. The Human Rights Committee stressed that discrimination may not be made between different categories of aliens in the application of Article 13 of the iccpr.167 Traditionally, the principle of non-discrimination was treated as a complement to the rule of equality and equal legal protection. The principle, formulated as a prohibition against discriminating, was expressed in all international legal acts considering human rights protection. In the beginning, it appeared in the Charter of the United Nations, but it was the Universal Declaration of Human Rights168 that considerably affected its normative character. Article 2 of the Declaration includes a list of human characteristics that shall not be treated as grounds for discrimination. These are: race, sex, language, religion, colour, political and other views, national or social origin, property, birth or other status. Article 7, however, says that “all are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” Formulating the principle of non-discrimination in the Universal Decla­ ration of Human Rights led to its adoption in successive regulations on human rights protection and, as a consequence, it resulted in making the principle part of international law. Article 26 of the iccpr says that “all persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” However, taking into consideration the right of an alien to be protected against arbitrary expulsion, it is Article 2(1) of the iccpr that is more important, as it expresses a State’s obligation to respect and guarantee this particular right as well as all the other rights and freedoms included in the Covenant regardless of race, colour, sex, language, religion, political and other views, national or social origin, property, birth and any other circumstances. Among other international treaties, the International Convention on the Elimination of All Forms of Racial Discrimination (icerd) of 1966 plays an important role. Under Article 5(1), States Parties are obliged to prohibit and eliminate any form of racial discrimination and to guarantee the right of 167 Human Rights Committee, General Comment No. 15 of 1 April 1986, paras. 2 and 10. 168 R. Wieruszewski, “Zasada równości i niedyskryminacji w świetle orzecznictwa Komitetu Praw Człowieka (wybrane aspekty),” Państwo i Prawo, No. 4/2000, p. 40.

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everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: • the right to equal treatment before the tribunals and all other organs administering justice; • the right to personal security and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution; • the right to leave any country, including one’s own, and to return to one’s country. The principle of non-discrimination also appears in regional human rights instruments. Article 14 of the echr guarantees prohibition of discrimination and says that “the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.” It does not exist independently because it has effect solely in relation to the enjoyment of the rights and freedoms safeguarded by the Convention. Moreover, Protocol No. 12 to the echr enhances the general prohibition of discrimination.169 Article 1 of this Protocol expands the prohibition of discrimination by referring to “any right set forth by law.” Thereby, in the event of any accusation of discrimination based on other grounds than the enjoyment of the rights protected in the Convention and Protocols, the European Court of Human Rights can adjudicate based on Protocol No. 12. Hence, the ECtHR controls domestic regulations which grant rights to aliens to ensure that there are no acts of discrimination. According to Article 24 of the American Convention on Human Rights: “All persons are equal before the law. Consequently, they are entitled, without discrimination, to equal protection of the law.” In this respect, the InterAmerican Court has understood that: the notion of equality springs directly from the oneness of the human family and is linked to the essential dignity of the individual. That principle cannot be reconciled with the notion that a given group has the right to privileged treatment because of its perceived superiority. It is equally irreconcilable with that notion to characterize a group as inferior 169 Protocol No. 12 entered into force on 1 April 2005. So far, not every country (including Poland) has decided to ratify it.

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and treat it with hostility or otherwise subject it to discrimination in the enjoyment of rights that are accorded to others not so classified. It is impermissible to subject human beings to differences in treatment that are inconsistent with their unique and congenerous character.170 In turn, the African Charter on Human and Peoples’ Rights takes an original approach to non-discrimination which seems to be based more on values than on legal considerations. Article 28 of that Charter provides that “every individual shall have the duty to respect and consider his fellow beings without discrimination, and to maintain relations aimed at promoting, safeguarding and reinforcing mutual respect and tolerance.” The Human Rights Committee explained that the rights formulated in the iccpr apply to any person, irrespective of reciprocity, and irrespective of his nationality or possible statelessness. The general rule is that every single right of the Covenant must be guaranteed without discrimination between citizens and aliens in the territory of a given State.171 The Committee’s practice shows, however, that in many countries rights that aliens should enjoy under the Covenant are denied to them or are subject to limitations. The Human Rights Committee in its General Comment No. 19 of 1989 stated that the notion of discrimination means “any distinction, exclusion, restriction or preference based on criteria such as race, color, sex, language, religion, political views, national or ethnic origin, property, birth or other status and has the purpose of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms.”172 At the same time, the Committee admitted that equal treatment does not mean identical treatment in every instance.173 The Human Rights Committee believes that it is permitted to differentiate between the legal situation of individuals, provided it is not of arbitrary nature and is based on reasonable and objective criteria. Any possible doubts concerning the criteria (that may be the grounds for differentiation) are determined under Article 2(1) of the iccpr by a general term that refers to “other circumstances.” Alienage is not, without any doubt, a permissible ground for different treatment. The European Court of Human Rights has also held that a difference in treatment is only discriminatory when: 170 Inter-American Court of Human Rights, Advisory Opinion OC-17/02 of August 28, 2002, Cf. Legal Status and Human Rights of the Child, Series A, No. 17, para. 45. 171 Human Rights Committee, General Comment No. 15 of 1 April 1986, para. 2. 172 Human Rights Committee, General Comment No. 18 of 10 November 1989, para. 7. 173 Ibidem, para. 8.

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it has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realized.174 The State Party to the European Convention on Human Rights “enjoys a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment. The scope of this margin will vary according to the circumstances, the subject-matter and the background.”175 Nevertheless, it is assumed that the status of an alien as such is not a ground for discrimination under the European Convention.176 Likewise, the Inter-American Court of Human Rights has established: no discrimination exists if the difference in treatment has a legitimate purpose and if it does not lead to situations which are contrary to justice, to reason or to the nature of things. It follows that there would be no discrimination in differences in treatment of individuals by a State when the classifications selected are based on substantial factual differences and there exists a reasonable relationship of proportionality between these differences and the aims of the legal rule under review. These aims may not be unjust or unreasonable, that is, they may not be arbitrary, capricious, despotic or in conflict with the essential oneness and dignity of humankind.177 The Inter-American Court of Human Rights also stated that: the principle of equality and non-discrimination are jus cogens applicable to all residents regardless of immigration status. (…). The Court 174 ECtHR 23 July 1968, Case “relating to certain aspects of the laws on the use of languages in education in Belgium” v. Belgium, Application Nos. 474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64, para. 10. 175 ECtHR 10 March 2011, Kiyutin v. Russia, Application No. 2700/10, para. 62. 176 H. Lambert, The position of aliens…, op. cit., p. 15. 177 Inter-American Court of Human Rights, Advisory Opinion OC-17/02 of August 28, 2002, Cf. Legal Status and Human Rights of the Child, Series A, No. 17, para. 47.

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considers that the State may not subordinate or condition the observance of the principle of equality before the law and non-discrimination to achieving the goals of its public policies, whatever these may be, including those of a migratory nature. This general principle must be respected and guaranteed always. Any act or omission to the contrary is inconsistent with the international human.178 The principle of non-discrimination is of great importance when determining whether an expulsion is arbitrary or not, mostly because it does not allow expulsion of aliens on grounds such as race, religion, sex, language, nationality or any others. As an example, so-called Mauritian women case which was analysed by the Human Rights Committee, can be quoted.179 It concerns the immigration law of Mauritius, which granted immunity from deportation to the foreign wives of Mauritian citizens, whereas this right was refused to foreign husbands wedded to Mauritian female citizens. On grounds of discriminatory regulations a communication was submitted to the hrc by some female citizens whose husbands were aliens. The Committee admitted the legitimacy of the thesis that Mauritius may limit the number of aliens to its territory and expel them on security grounds. At the same time, it stated that immigration regulations are of discriminatory nature, violate Article 26 of the iccpr and cannot be justified by safety reasons. The Committee remarked that each State Party has an obligation under Article 2(1) of the iccpr to observe and grant the rights included in the Covenant to all persons under its jurisdiction, regardless of sex.180 The European Court of Human Rights, in its judgment of 29 May 1985 concerning Abdulaziz, Cabales and Balkandali v. The United Kingdom, adopted a similar stance.181 An application was submitted by three non-national wives who were granted a permanent residence permit in the United Kingdom, after their non-national husbands had been refused permission to enter and settle there. The Court said that domestic law distinguished between immigrants settled in the uk, giving preference to wives and imposing limitations on husbands. According to the Court, the applicants fell victim to discrimination 178 Inter-American Court of Human Rights, Advisory Opinion OC-18/03 of September 17, 2003, Juridical Condition and Rights of the Undocumented Migrants, Series A, No. 18, p. 113. 179 Shirin Aumeeruddy-cziffra and 19 other Mauritian women v. Mauritius, Communication No. 35/1978, decision of 9 April 1981. 180 Ibidem. 181 ECtHR 28 May 1985, Abdulaziz, Cabales and Balkandali v. The United Kingdom, Application No. 9214/80, No. 9473/81 and No. 9474/81.

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on grounds of sex, violating Article 14 in relation to Article 8 of the Convention. The Court emphasized again that the concept of discrimination in the light of Article 14 embraces situations where a person is treated in a less favourable way than others, without any reasonable justification.182 The prohibition of discrimination in relation to the expulsion of aliens was also recognized by the Iran-United States Claims Tribunal in the Rankin case.183 This concerned the Iranian Government’s order to expel all non-nationals from its territory. According to the Tribunal, discrimination is one of the factors that render an expulsion arbitrary under international law.184 The Committee on the Elimination of Racial Discrimination deliberated on many occasions on the discrimination of aliens, especially its particular categories, i.e. migrant workers or refugees.185 In its General Recommendation No. 30, the Committee acknowledged the following obligations of States Parties to the Convention regarding the expulsion of aliens: • obligation to ensure that laws concerning deportation or other form of removal of non-citizens from the jurisdiction of the State Party do not discriminate in purpose or effect among non-citizens on the basis of race, colour or ethnic or national origin; • obligation to ensure that non-citizens have equal access to effective remedies, including the right to challenge expulsion orders and are allowed effectively to pursue such remedies; • obligation to ensure that non-citizens are not subject to collective expulsion in particular in situations where there are insufficient guarantees that the personal circumstances of each of the persons concerned have been taken into account; • obligation to ensure that non-citizens are not returned to a country or territory where they are at risk of being subject to serious human rights abuses, including torture and cruel, inhuman or degrading treatment or punishment.186 182 M.A. Nowicki, Wokół Konwencji…, op. cit., pp. 329–330. 183 Rankin v. The Islamic republic of Iran, Iran-United States Claims Tribunal, Judgment of 3 November 1987. 184 Ibidem. 185 See: Concluding observations of the Committee on the Elimination of Racial Discrimination: France, 1.03.1994, A/49/19, para. 144; Concluding observations of the Committee on the Elimination of Racial Discrimination: Canada, 21.08.2002, A/57/18, para. 336. 186 Committee on the Elimination of Racial Discrimination, General Recommendation No. 30 “Discrimination against non-citizens” of 1.10.2004, paras. 25–28.

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The Committee on the Elimination of Racial Discrimination also recognized that States should refrain from expelling aliens, long-term residents in particular, as that might result in disproportionate interference with the right to family life.187 Granting aliens protection against discrimination was also the topic of discussion at the World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance held in 2001 in Durban. Special attention was drawn to manifestations of widely understood intolerance towards migrants and refugees as well as common stereotypes still existing. States were called upon to protect the rights of migrants under their jurisdiction as well as to provide migrants with protection against illegal and violent acts of racial discrimination in particular.188 In this respect, the Durban Declaration and Programme of Action made by the World Conference urged all States to “to review and, where necessary, revise their immigration laws, policies and procedures with a view to eliminating any element of racial discrimination and make them consistent with State obligations by virtue of international human rights instruments.”189 In order to provide non-citizens with effective protection against discrimination upon expulsion, M. Kamto in the Draft Articles on Protection of the Human Rights of Persons who Have Been or Are Being Expelled presented a regulation that clearly says that States shall exercise their right to expel aliens without any discrimination on grounds such as: race, colour, sex, language, religion, political or other views, national or social origin, property, birth or any other status. In conclusion, both in the doctrine and international jurisprudence, it has been held that the principle of non-discrimination plays a special role in providing every lawful non-citizen with protection against arbitrary expulsion, irrespective of what category they belong to. It must be emphasized that it is the role of States to foster greater harmony, tolerance and respect between migrants and host societies, with the aim of eliminating manifestations of racism and xenophobia. Regardless of their country of residence, non-citizens must be treated by immigration authorities with dignity, in a non-discriminatory manner and in accordance with international human rights standards. 187 Ibidem. 188 Declaration and Programme of Action of the World Conference against Racism, Racial Discrimination, Xenophobia and Related Forms of Intolerance, held in Durban South African, from August 31 to September 8, 2001, Text of the Declaration is available at: http:// www.un.org/WCAR/coverage.htm. 189 Ibidem, paras. 38 and 30(b).

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The Principle of Non-Refoulement

5.1 Introduction Another relevant regulation to provide all lawful aliens with protection against arbitrary expulsion is the prohibition against expelling them to a country where they are likely to face torture or any other ill-treatment – non-refoulement. In other words, if a State makes a decision to expel an alien, knowing that the expulsion would put him at risk of torture, such expulsion violates his human rights. Non-refoulement is a principle of international law, which means that States are banned from returning a person to a place where he might be tortured or face persecution.190 The term non-refoulement derives from French refouler which means to remove, transfer, reject or refuse admission to a person.191 As far as immigration control in continental Europe – France and Belgium in particular – is concerned, the term refoulement encompasses both expulsion and non-admission at the frontier, because the presence of the particular person in the country is considered undesirable.192 In the doctrine, it has been held that the French term refouler is the equivalent of English return.193 In the beginning, non-refoulement was a guiding principle in the law on refugee protection. It was explicitly expressed in Article 33 of the Convention Relating to the Status of Refugees of 1951: 1. No Contracting State shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. 190 A. Duffy, “Expulsion to Face Torture? Non-refoulement in International Law,” International Journal of Refugee Law, Vol. 20, No. 3, 2008, p. 373. 191 D. Alland, C. Teitgen-Colly, Traité du droit de l’asile, Presses Universitaires de France Paris, 2002, p. 229. 192 See also: N. Robinson, Convention Relating to the Status of Refugees. Its History, Contents and Interpretation, Institute of Jewish Affairs, World Jewish Congress, 1953, p. 138. 193 In literature and international doctrine the French term has been adopted, as it is a complex linguistic structure that stands for proper name, since no uniform translation can be found, I shall use the French term.

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The authors of the Convention found it necessary to include the French term refouler in English text to confirm its exact meaning. Soon after, the scope of the non-refoulement obligation expanded to cover other categories of aliens. Subsequently, it has become a sine qua non condition of contemporary international human rights law.194 A detailed regulation of the non-refoulement principle can be found in Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (cat) adopted by the General Assembly of the United Nations on 10 December 1984: “1. No State Party shall expel, return (refouler) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.”195 Professor Manfred Nowak, former United Nations Special Rapporteur on Torture, claims that prohibition against refoulement in Article 3 of the above-mentioned Convention formulates an important principle of international law, based in part on case law of human rights treaty monitoring bodies, meaning a State violates the absolute prohibition of torture not only if its own authorities subject a person to torture, but also if a person is sent to another State where there are sub­ stantial grounds for believing that the person would be in danger of being subjected to torture.196 Article 7 of the International Covenant on Civil and Political Rights of 1966, stating that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation,” was also interpreted as including the prohibition against refoulement. The Human Rights Committee in its General Comment No. 20 of 1992 stated that “State parties must not expose individuals to the danger of torture or cruel, inhuman 194 D.A. Martin, “The Authority and Responsibility of States,” in A.T. Aleinikoff, V. Chetail, Migration and International Legal Norms, t.m.c. Asser Press, The Hague 2003, pp. 37–38; See also: D. Fischer, S. Martin, A. Schoenholtz, “Migration and Security in International Law,” in A.T. Aleinikoff, V. Chetail, op. cit., p. 105; W. Schabas, “Non-refoulement,” Background Paper for the technical workshop on Human Rights and International Cooperation in Counter-Terrorism, Liechtenstein, 2007. 195 Poland ratified this Convention, Polish Journal of Laws of 1989, No. 63, item 378. 196 M. Nowak, E. McArthur, The United Nations Convention Against Torture. Commentary, Oxford University Press, 2008, p. 127.

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or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement.”197 An analogous regulation can be found in Article 3 of the European Convention on Human Rights of 1950: “no one shall be subjected to torture or to inhuman or degrading treatment or punishment.” Recommendation of Parliamentary Assembly of the Council of Europe of 1965 reads: “Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms which, by prohibiting inhuman treatment, binds Contracting Parties not to return refugees to a country where their life or freedom would be threatened.”198 The notion was also acknowledged in the jurisprudence of the European Court of Human Rights.199 The prohibition of refoulement has also been developed under other regional treaty regimes. The American Convention on Human Rights expressive verbis prohibits the expulsion of an alien to a country where his life or personal freedom would be endangered due to discrimination on certain grounds. Article 22(8) of the achr provides: “In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status, or political opinions.” In turn, the African Charter on Human and Peoples’ Rights contains a prohibition against torture in Article 5. Nevertheless, the Charter does not address the implication of this prohibition with respect to expulsion. However, the African Commission for Human and Peoples’ Rights has reaffirmed the principle of non-refoulement with respect to torture in cases of expulsion. According to the adopted “Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa” by the aforementioned Commission in 2002: “States should ensure no one is expelled or extradited to a country where he or she is at risk of being subjected to torture.”200 The principle of non-refoulement as such can be seen as a manifestation of a preventive approach towards human rights and the protection from torture, in 197 Human Rights Committee, General Comment No. 20 of 3 April 1992, para. 9. 198 Recommendation 434(1965) on the granting of the right of asylum to European refugee, of 1 October 1965. 199 See: ECtHR 7 July 1989, Soering v. The United Kingdom, Application No. 14038/88; ECtHR 5 November 1996, Chahal v. The United Kingdom, Application No. 22414/93. 200 African Commission for Human and Peoples’ Rights, resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa, 32nd ordinary session, Banjul, The Gambia, 17–23 October 2002.

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particular. Although it is a common belief that under international law States are obliged to prevent any violation of human rights as such, the duty is particularly clear in the field of torture, which constitutes the most direct attack on the essence of human dignity and often causes much harm (and irremediable damage).201 When a person does not want to return to his country, the authorities of the State of their residence, before they decide on expulsion, must check if there are any obstacles to send them to the country of their nationality. All the above-mentioned regulations point to a wide scope of protection of aliens against arbitrary expulsion in international conventions on human rights. However, the issue of how far a principle of non-refoulement extends, remains unclear. Nonetheless, international jurisprudence provides valuable assistance in this regard. H. Lambert noted that in refugee and human rights discourse there appeared an opinion that the European Convention on Human Rights of 1950 guarantees more extensive protection against refoulement than the Convention Relating to the Status of Refugees.202 It remains uncertain whether the protection granted by the Convention Against Torture and the International Covenant on Civil and Political Rights may substitute or even strengthen the echr. For that particular reason the following sections will review the scope of protection under the principle of non-refoulement in the light of the following treaties: the Convention Relating to the Status of Refugees, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the iccpr and the echr. Protection of Expelled Aliens under Article 33 of the Convention Relating to the Status of Refugees (Prohibition against Exposing Human Life or Freedom to Danger) The Convention Relating to the Status of Refugees has been ratified by 145 countries and has become the first international treaty which imposed restrictions on States Parties in their right to expel aliens. Article 33 of the Convention prohibits the expulsion or return (refouler) of a refugee to another country where his life or freedom would be in danger. It must be noted, however, that the personal scope of the non-refoulement principle is limited as it only protects refugees and asylum seekers.203

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201 W. Suntiger, “The Principle of Non-refoulement: Looking Rather to Geneva than to Strasbourg?” Austrian Journal of Public and International Law, Vol. 49, 1995, p. 204. 202 H. Lambert, “Protection against refoulement from Europe: Human Rights Law comes to the rescue,” International and Comparative Law Quarterly, Vol. 48, 1999, p. 515. 203 G.S. Goodwin-Gil, J. McAdam, op. cit., p. 232.

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According to Article 1A(2) of the Convention, a refugee is a person who “as a result of well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside of the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.” Analysing the personal scope of the non-refoulement principle in the discussed Convention, one may come across the opinion that the principle refers exclusively to persons whose status, as refugees, was formally recognized. It stems from the fact that refugee status is formally given by municipal law only when the asylum seeker comes within the definition of a refugee under Article 1A(2) of the Convention Relating to the Status of Refugees.204 E. Lauterpacht and D. Bethelem point out that this opinion is invalid.205 In their view, Article 1A(2) does not define a “refugee” as a person who was formally recognized as someone fearing persecution. The regulation clearly states that this term should refer to anyone who, because of a well-founded fear of being persecuted, cannot or is unwilling to return to the country of his nationality. In other words, a person who satisfies the conditions of Article 1A(2) is a refugee, regardless of whether he was formally recognized under municipal law. The Handbook on Procedures and Criteria for Determining Refugee Status, issued by the Office of United Nations High Commissioner for Refugees, states that a person “is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition but is recognized because he is a refugee.”206 Any other approach in this matter, as E. Lauterpacht and D. Bethelem say, would undermine the effectiveness and utility of the protective arrangements of the Convention as it would open the door to States rejecting the application of the Convention by refusing to extend to persons meeting the criteria of Article 1A(2) concerning the formal status of refugees.207 204 E. Lauterpacht, D. Bethelem, The scope and the content of the principle of non-refoulement: opinion in Refugee Protection in International Law: unhcr’s Global Consultations on International Protection, 2003, p. 116. 205 Ibidem, p. 116. 206 I. Kurz, Podręcznik dotyczący zasad i trybu ustalania statusu uchodźcy, Biuro Wysokiego Komisarza Narodów Zjednoczonych do spraw Uchodźców, 1992, para. 28. 207 E. Lauterpacht, D. Bethelem, op. cit., p. 116.

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Among all the mentioned treaties, the Convention Relating to the Status of Refugees is the only one that does not guarantee an absolute prohibition against refoulement, since Article 33(2) of the Convention prescribes a limitation.208 When discussing its scope, J. Hathaway and C. Harvey mention two main methods which apply to assess whether an asylum seeker or a refugee pose a danger to the national security of a State.209 First, it must be proved beyond doubt that there are reasonable grounds that a person is a danger to the security of the State in which he applies for asylum or refugee status. The State, then, must show that continued presence of the refugee in its territory constitutes a threat to its security. Secondly, the refugee must be convicted by final judgment of a serious crime, which means that all other legal remedies have been exhausted.210 The travaux préparatoires of the Convention Relating to the Status of Refugees stress that only serious crimes such as rape, murder, assassination, arson and armed robbery are considered as leading to exemptions of the non-refoulement principle.211 J. Hathaway and C. Harvey note that in order to invoke the limitation under Article 33(2), there has to be a connection between the nature of conviction and the real risk posed by the person’s presence in a State.212 The un High Commissioner for Refugees stated that exceptions to the principle under Article 33(2) of the Convention should be viewed with caution because of the serious consequences for refugees regarding their expulsion to a country where they might face persecution. It is necessary to take into consideration all circumstances of a given case.213 Considering the humanitarian character of the non-refoulement principle, it must be understood that the exceptions to the principle must be interpreted narrowly and applied only when the particular circumstances of the case and the individual characteristics of the person show that he presents a danger to the community or national security. Nevertheless, an alien who comes under the ambit of Article 33(2) of the Convention will benefit from protection against 208 According to Art. 33(2) of the Refugee Convention: “The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.” 209 J. Hathaway, C. Harvey, “Framing Refugee Protection in the New World Disorder,” Cornell International Law Journal, Vol. 34, 2001, pp. 289–291. 210 A. Duffy, op. cit., p. 375. 211 J. Hathaway, C. Harvey, op. cit., p. 292. 212 Ibidem, p. 292. 213 unhcr, Note on the Principle of Non-refoulement, November 1997.

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refoulement provided by more generous international human rights law, which will be discussed later. Protection of Expelled Aliens under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Prohibition of Torture) The prohibition against refoulement in Article 3 of the cat is based on case law relating to the absolute prohibition of torture. Professor Manfred Nowak, in his commentary to the Convention, states that Article 3 encompasses all forms of obligatory deportation of an alien from the territory of a State, including forms of ordinary or extraordinary “rendition,” practiced mostly by the United States in the fight against terrorism.214 It should be noted that, unlike Article 33 of the Convention Relating to the Status of Refugees, Article 3 of the cat guarantees an absolute right which is subject to no exclusion or limitation clause, even because of national security. Moreover, the provision protects every person (even the most dangerous criminal) from being returned to a country where they would be in danger of being subjected to torture, regardless of the person’s past history.215 While the Convention Relating to the Status of Refugees applies only to aliens and asylum seekers, Article 3 of the cat covers all non-nationals, not only refugees, but also persons lacking this status. Even if a host State, in which a dangerous terrorist is seeking protection against persecution refuses to grant him asylum, the authorities are prevented from returning that person to the country of his nationality or any other country where there is a genuine risk of torture.216 In contrast to the Convention Relating to the Status of Refugees, the aim of Article 3 of the cat is to protect an alien from expulsion to a country where he would be subject to torture, regardless of his race, religion, nationality, political views and membership to a particular social group. The definition of torture can be found in Article 1 of the cat, which states that:

5.3

torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected 214 M. Nowak, E. McArthur, op. cit., pp. 129–196. 215 See: Tapia Paez v. Sweden, Communication No. 39/1996, decision of 28 April 1997, para. 14.5. 216 M. Nowak, E. McArthur, op. cit., p. 129.

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of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. It must be emphasized, however, that the Convention protects only from the risk of torture by public authorities.217 The doctrine reaffirms that a State may deport an alien to another country, if the risk of torture comes solely from nonState actors.218 For example, in Ms. M.C.M.V.F v. Sweden, the Committee Against Torture held that the expulsion of the person would not violate Article 3 partly because the incidents were not attributable to State agents or groups acting as State agents.219 The Committee Against Torture, in accordance with Article 22 of the cat, considers communications from individuals (i.e. authors of communications) and examines all relevant circumstances. A person who claims to be a victim of a violation by a State Party of the provisions of the Convention must show evidence that there are well-founded grounds to fear that he will be at risk of being subjected to tortures in the country they are to be deported to. In order to determine whether the expulsion of an alien to a particular State is inconsistent with Article 3, the Committee has adopted special guidelines for States Parties and authors of communications: “The following information, while not exhaustive, would be pertinent: (a) Is the State concerned one in which there is evidence of a consistent pattern of gross, flagrant or mass violations of human rights? (b) Has the author been tortured or maltreated by or at the instigation of or with the consent of acquiescence of a public official or other person acting in an official capacity in the past? If so, was this the recent past? 217 In its General Comment No. 1, the Committee Against Torture indicated that the reference to a pattern of human rights violations refers only to violations involving public officials or persons acting in an official capacity: “Pursuant to article 1, the criterion, mentioned in article 3, paragraph 2, of ‘a consistent pattern or gross, flagrant or mass violations of human rights’ refers only to violations by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Committee Against Torture, General Comment No. 1 of 21 November 1997, para. 3. 218 M. Nowak, E. McArthur, op. cit., p. 128. 219 Ms. M.C.M.V.F v. Sweden, Communication No. 237/2003, decision of 12 December 2005, para. 6.4.

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(c) Is there medical or other independent evidence to support a claim by the author that he/she has been tortured or maltreated in the past? Has the torture had after-effects? (d) Has the situation referred to in (a) above changed? Has the internal situation in respect of human rights altered? (e) Has the author engaged in political or other activity within or outside the State concerned which would appear to make him/her particularly vulnerable to the risk of being placed in danger of torture were he/she to be expelled, returned or extradited to the State in question? (f) Is there any evidence as to the credibility of the author? (g) Are there factual inconsistencies in the claim of the author? If so, are they relevant?”220 The Committee is “obliged to assess whether there are substantial grounds for believing that the author would be in danger of being subjected to torture were he/she to be expelled, returned or extradited, the risk of torture must be assessed on grounds that go beyond mere theory or suspicion. However, the risk does not have to meet the test of being highly probable.”221 The Committee Against Torture has also stated that the risk of torture need not be highly probable, but it must be personal and present.222 Moreover, the Committee examines all relevant considerations, including the existence of a consistent pattern of gross, flagrant or mass violations of human rights in the State of destination. However, it stressed “that the existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not as such constitute sufficient grounds for determining that a particular person would be in danger of being subjected to torture if expelled to that country.”223 The Committee indicated that additional grounds must be adduced to show that the individual concerned would be personally at risk.224 Additionally, the Committee checks if the alien who is to be deported was ever subjected to torture or any other ill-treatment, whether he is credible or if 220 Committee Against Torture, General Comment No. 1 of 21 November 1997, para. 8. 221 Ibidem, para. 6. 222 Ibidem, para. 7. See also: A.R. v. Netherlands, Communication No. 203/2002, decision of 21 November 2003, para. 7.3; A.A. et. al v. Switzerland, Communication No. 285/2006, decision of 10 November 2008, para. 7.6; and R.T.-N. v. Switzerland, Communication No. 350/2008, decision of 3 June 2011, para. 8.4. 223 Gbadjavi v. Switzerland, Communication No. 396/2009, decision of 1 June 2012, para. 7.3. 224 See: S.P.A. v. Canada, Communication No. 282/2005, decision of 7 November 2006; T.I. v. Canada, Communication No. 333/2007, decision of 15 November 2010; and A.M.A. v. Switzerland, Communication No. 344/2008, decision of 12 November 2010.

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there are factual inconsistencies in his communication.225 The Committee takes also into account if the State an alien is to be deported to is a party to the Convention Against Torture and has accepted the competence of the Committee with respect to receiving individual communications in reviewing expulsion cases under Article 3.226 It is apparent, however, that the very fact of being State Party to the Convention does not mean that the State will not violate the obligation not to deport aliens under Article 3.227 Protection of Expelled Aliens under Article 7 of the iccpr (Prohibition of Torture or Cruel, Inhuman Treatment or Punishment) The scope of Article 7 of the Covenant is broader than the scope of Article 3 of the cat, as it guarantees protection not only from torture but also from cruel, inhuman or degrading treatment or punishment. It should be noted, though, that the iccpr neither gives a precise definition of the term “torture,” nor explains the notion of “cruel, inhuman or degrading treatment or punishment.” M. Nowak is right to say that the iccpr, being a “living instrument,” should be interpreted in the light of the contemporary understanding of human rights.228 In conformity with Article 32 of the Vienna Convention on the Law of Treaties, the Convention Against Torture can be a useful supplementary tool of interpretation.229 The term “treatment” has a wider meaning as it refers to conduct that can be inflicted for all kinds of reasons, whereas “punishment” refers to conduct inflicted for disciplinary purposes.230 According to the Human Rights Committee, a list of different kinds of punishment or treatment cannot be drawn up.231 It is commonly thought that torture requires the utmost degree of pain and suffering and its application must be intentional and deliberate.232 It remains unclear, however, how to assess its degree. The prohibition in Article 7 relates to acts that cause physical pain as well as mental suffering to the 5.4

225 Committee Against Torture, General Comment No. 1 of 21 November 1997, para. 8. 226 See: Khan v. Canada, Communication No. 15/1994, decision of 15 November 1994, para. 12.5; Mutombo v. Switzerland, Communication No. 13/1993, decision of 27 April 1994. 227 See: Agiza v. Sweden, Communication No. 233/2003, decision of 20 May 2005; A.S. v. Sweden, Communication No. 149/1999, decision of 24 November 2000. 228 M. Nowak, u.n. Covenant…, op. cit., p. 182. 229 K. Wouters, International Legal Standards for the Protection from Refoulement, Intersentia, Antwerpen 2009, p. 389. 230 Ibidem, p. 381. 231 Human Rights Committee, General Comment No. 20 of 10 March 1992, para. 4. 232 M. Nowak, u.n. Covenant…, op. cit., pp. 160–161.

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victim.233 The Committee believes that an individual approach is necessary to evaluate each act by public authorities pursuant to Article 7 of the iccpr. While Article 1 of the cat refers to acts committed by a public official or any other person acting in an official capacity or with their consent or approval, the Committee was right to reject such a narrow approach, stating that a State Party to the Covenant has an obligation to ensure protection by the law against acts specified in Article 7 of the iccpr, even when committed by persons acting outside or without any official authority.234 The prohibition expressed in Article 7 of the Covenant has absolute character, and is not subject to any limitations, meaning that States Parties cannot derogate from it, even in time of a public emergency that threatens the life of the nation (Article 4 of the iccpr). Additionally, the iccpr, in contrast to the Convention Relating to the Status of Refugees, provides each person who claims that any of his rights specified in the Covenant have been violated with the possibility to submit a communication to the hrc (Article 2 of the Optional Protocol to the International Covenant on Civil and Political Rights). The aim of Article 7 of the Covenant is to protect the dignity and physical and mental integrity of a human being. The hrc paid special attention to the question of whether handing over a person from one State to another could put them at risk of torture or any other form of cruel, inhuman or degrading treatment or punishment. The Committee first expressed its opinion on the prohibition against refoulement in Kindler v. Canada. It stated that “if a State party takes a decision relating to a person within its jurisdiction, and the necessary and foreseeable consequence is that that person’s rights under the Covenant will be violated in another jurisdiction, the State party itself may be in violation of the Covenant.”235 The Committee believes that a State Party will violate the Covenant if it hands a person over to another country in circumstances in which it is foreseeable that torture will take place.236 The Committee examines, primarily, whether deporting an alien to another country would put him at real risk of torture or inhuman or degrading treatment or punishment. Here, “real risk” means that treatment contrary to Article 7 of the Covenant must be an inevitable and foreseeable consequence of the removal.237 To assess “real risk,” the Committee takes into account given 233 Human Rights Committee, General Comment No. 20 of 10 March 1992, para. 5. 234 M. Nowak, u.n. Covenant…, op. cit., pp. 161–162. 235 Kindler v. Canada, Communication No. 470/1991, decision of 18 November 1993, para. 6.2. See also: Chitat Ng v. Canada, Application No. 469/1991, decision of 7 January 1994, para. 6.2. 236 Ibidem. 237 K. Wouters, op. cit., p. 392.

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facts, credibility of arguments enumerated by an alien in his communication and general human rights situation in the State of their deportation. In Byahuranga v. Denmark, the Committee considered the fears presented by the alien in connection with his deportation to Uganda, where he would be exposed to treatment contrary to Article 7 of the iccpr because of his political activity – he was a soldier in General Amin’s army.238 The author of the communication came to Denmark in 1981, where he was granted asylum because of having been tortured and unlawfully detained in the country of his origin. In June 1990, he was issued a permanent residence permit. In 2002 he was convicted of drug-related offences and subsequently ordered to be expelled from Denmark. Unlike Danish authorities and courts, the Committee considered his testimony credible enough to assume that there was a real risk of inhuman treatment upon his return to Uganda.239 Thereby, the Committee found that expelling the author of the communication to Uganda would violate his rights under the Article 7 of the Covenant regardless of the offences he committed.240 In the case concerning expelling an alien granted refugee status in Australia, the Committee decided that in circumstances where the State Party has recognized a protection obligation towards the alien, his deportation to a country where he is unlikely to receive the treatment necessary for his illness would be inconsistent with Article 7 of the Covenant.241 On 29 March 2004, the Human Rights Committee adopted General Com­ ment No. 31 regarding the nature of legal obligations imposed on States Parties to the Covenant. The hrc stated that the obligation under Article 2 of the iccpr requires that States Parties respect and ensure the Covenant rights for all persons in their territory and under their jurisdiction. Thereby, the Committee clarified that this provision obliges States Parties: “not to extradite, deport, expel or otherwise remove a person from their territory, where there are substantial grounds for believing that there is a real risk of irreparable damage, such as that contemplated by Articles 6 and 7 of the Covenant, either in the country to which removal is to be effected or in any country to which the person may be subsequently removed.”242 The relevant judicial and administrative authorities should be made aware of the 238 Jonny Rubin Byahuranga v. Denmark, Communication No. 1222/2003, decision of 1 November 2004. 239 Ibidem, para. 11.2. 240 Ibidem, paras. 11.3, 12. 241 C. v. Australia, Communication No. 900/1999, decision of 28 October 2002, para. 8.5. 242 Human Rights Committee, General Comment No. 31 of 29 March 2004, para. 12.

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need to ensure compliance with the obligations deriving from the aforementioned provisions.243 Protection of Expelled Aliens under Article 3 of the echr (Prohibition of Torture or Inhuman, Degrading Treatment or Punishment) The European Court of Human Rights has developed extensive and wellestablished jurisprudence on expulsion under Article 3 of the echr. This regulation is another example of the so-called “protection by ricochet of the Convention.”244 It allows extending the protection of rights recognized by the European Convention to the rights of aliens that are not expressly provided for. The prohibition expressed in this echr article is absolute in its character. It means that no person, regardless of how undesirable and dangerous he is, shall be returned to a country where he would face the risk of torture even if he posed a threat to national security.245 The provision applies to every individual, irrespective of his nationality, lawfulness of stay, past activity or personal conduct.246 The ECtHR in its judgment in Chahal v. The United Kingdom stated that the protection afforded by Article 3 is wider than that provided by Articles 32 and 33 of the Convention Relating to the Status of Refugees of 1951.247 In accordance with Article 15(2) of the echr a State may 5.5

243 Ibidem. 244 It is established that the first case in which the ECtHR commented on refoulement was the judgment in the Soering v. The United Kingdom case of 7 July 1989. 245 ECtHR 15 November 1996, Chahal v. The United Kingdom, Application No. 22414/93; ECtHR 20 June 2010, A. v. Netherlands, Application No. 4900/06. 246 See: ECtHR 15 November 1996, Chahal v. The United Kingdom and ECtHR 2 May 1997, D. v. The United Kingdom, Application No. 30240/96. The ECtHR decided that protection against refoulement should be granted to persons whose asylum application had been revoked, to criminals, drug dealers or even alleged terrorists. 247 ECtHR 15 November 1996, Chahal v. The United Kingdom, Application No. 22414/93. The case concerned an Indian citizen, a Sikh activist, lawfully staying in the uk since 1974 together with his family. During his stay, he was convicted twice in criminal cases concerning his activity in establishing an independent Khalistan. He was charged with terrorist activity. In the first case the conviction was quashed. In the second case he was acquitted of the charges. In 1990, the uk Government decided to expel Mr Chahal on grounds of State interest, public security including the fight against terrorism. In his application before the ECtHR, Chahal claimed that his deportation to India would exposed him to a real risk of torture or inhuman or degrading treatment or punishment on the part of Indian Security Forces. The Court held that the applicant might be subject to treatment contrary to Art. 3 of the echr. A deportation order, if carried out by uk authorities, would breach the provision.

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not derogate from observing the provision of Article 3, even in times of war or other public emergency threatening the life of the nation. Expulsion of an alien may entail responsibility of a State under Article 3 of the echr if there are substantial grounds for considering that the person expelled will face the risk of being tortured, treated in an inhuman or degrading way or punished. According to the Court, the duty not to expel aliens does not depend on whether the source of the risk of ill-treatment is connected directly or indirectly with the responsibility of the authorities of the receiving State. P. van Dijk believes that the protection guaranteed by Article 3 of the Convention should be applied, regardless of the cause of the ill-treatment.248 In contrast to Article 3 of the cat, Article 3 of the echr also applies when the risk of torture and inhuman or degrading treatment or punishment in the receiving State arises not only from public officials but also from private persons such as terrorists, insurgencies or drug traffickers.249 A real risk that the authorities are unable to prevent must be then proved.250 In Ahmed v. Austria, the applicant claimed violation of Article 3 of the Convention concerning an expulsion order to Somalia, where the general situation was exceptionally unstable and because of that, as an opposition party activist, he would face a risk of being arrested, tortured and executed.251 To assess the situation in Somalia, the Court looked to decisions of the Commission on Human Rights. The findings of the Commission showed that the country was in a state of civil war and fighting was going on between a number of clans vying for control of the country. What is more, there was no indication that the danger the applicant might be exposed to would cease to exist or that any public authority would be able to protect him.252 The Court then unanimously stated that the expulsion of Ahmed would breach the discussed regulation. In Salah Sheekh v. The Netherlands, the Court stated that the applicant would face a treatment in breach of Article 3 of the Convention upon his return, because 248 P. van Dijk, “Asylum Law and Policy in the Netherlands,” in R. Lawson, M. de Blois, The Dynamics of the Protection of Human Rights in Europe: Essays of Henry G. Schermers, Martinus Nijhoff, Dordrecht 1994, p. 129. 249 Yutaka Arai-Takahashi, “Uneven, But in the Direction on Enhanced Effectiveness – a Critical Analysis of Anticipatory Ill-Treatment under Article 3 echr,” Netherlands Quarterly of Human Rights, Vol. 20, No. 1, 2002, p. 10; See also: K. Reid, op. cit., p. 370. 250 ECtHR 29 April 1997, H.L.R. v. France, Application No. 24573/94. 251 ECtHR 17 December 1996, Ahmed v. Austria, Application No. 25964/94. In 1993, the applicant was sentenced to 2.5 years imprisonment for attempted assault and robbery, as a result of which, Austrian authorities deprived him of refugee status and regarded him as dangerous to Austrian society. The expulsion order was issued on these grounds. 252 Ibidem, para. 44.

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of the fact that he belonged to a minority which was fought against by hostile tribal clans.253 Therefore, it is right to think that the scope of application of Article 3 of the echr extends to the relation between private entities.254 In such situations, a State bears responsibility for its authorities’ misconduct, unable to protect an individual from activities administered by private entities contrary to Article 3 of the Convention.255 In other words, the positive obligation requires that States take steps designed to ensure that individuals within their jurisdiction are not subjected to unlawful ill-treatment meted out both by private entities or public officials. The doctrine says that a State has an obligation to take protective measures to prevent the risk of torture or inhuman, degrading conduct including ill-treatment by non-State actors.256 Without a doubt, the idea of positive obligations to protect an individual from violation of their rights by State officials or non-State actors under Article 3 of the Convention reflects the nature of the Convention as a “living instrument.” In the echr one can read that any person who feels his rights have been violated under the Convention can submit an individual application to the Court. The applicant shall prove that there are substantive grounds for believing that he would be in danger of being subjected to torture, inhuman or degrading treatment or punishment.257 It is emphasized that the Court has an obligation to examine every case thoroughly.258 Analysing the possibility of real risk, the Court takes into account the personal circumstances of each applicant, their political engagement in the receiving State as well as their membership of a particular social or ethnic group.259 The Court, in order to assess the risk in the case of expulsion, must consider all facts publicly known or the materials available at that time.260 According to the Court, the notion of substantial grounds means that there exist well-founded grounds that 253 ECtHR 11 January 2007, Salah Sheekh v. The Netherlands, Application No. 1948/04. 254 Yutaka Arai-Takahashi, op. cit., pp. 9–11. See also: ECtHR 10 May 2001, Z. and others v. The United Kingdom, Application No. 29392/95, para. 73; ECtHR 12 October 2006, Mubilazila Mayeka and Kaniki Mitunga v. Belgium, Application No. 13178/03, para. 53. 255 A. Szklanna, op. cit., p. 242. 256 S. Palmer, “A Wrong Turning: Article 3 ECHR and Proportionality,” Cambridge Law Journal, Vol. 65, No. 2, June 2006, pp. 440–442; See also: K. Reid, op. cit., pp. 530–531; L. Garlicki, Konwencja…, op. cit., p. 135. 257 ECtHR 17 July 2008, Na v. The United Kingdom, Application No. 25904/07, paras. 110–111. 258 ECtHR 20 October 1991, Vilvarajah and others v. The United Kingdom, Application Nos. 13163/87, 13164/87, 13165/87, 13447/87, 13448/87. 259 A. Szklanna, op. cit., p. 235. 260 ECtHR 17 December 1996, Ahmed v. Austria, Application No. 25964/94, para. 43.

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expulsion is imminent and that the receiving State will apply measures contradictory to Article 3 of the echr.261 It should be noted that the Court does not refer to torture in cases of expulsion, it rather relies on the idea of inhuman or degrading treatment.262 The Court has adjudicated in cases where the risk of inhuman treatment concerned expulsion to a country where an alien would not be provided with adequate medical care.263 To assess that risk, the Court takes into account the medical condition of the applicant at the time of examining his claim. In a very important judgment D. v. The United Kingdom, the Court emphasized that expulsion is prohibited if it prevents life-saving treatment. The case concerned an alien, an aids sufferer, convicted of drug smuggling, facing expulsion to the country of his origin (St. Kitts). His deportation would undoubtedly entail the loss of medical treatment which he was currently receiving.264 The Court reiterated that Article 3 of the Convention is not limited to situations where ill-treatment comes from authorities or non-State actors but also applies when authorities of the receiving country are unable to provide an expelled individual with adequate protective measures.265 The Court stated that stripping the applicant of the possibility to continue an advanced treatment at that stage of illness and enjoying palliative care from beneficial institutions would have dramatic consequences. Therefore, deporting him from the United Kingdom would cause him severe pain and mental suffering and hasten his death. Claiming that expelling the alien would breach the standards of Article 3 of the Convention, the Court added that aliens subject to expulsion, as a rule, are not entitled to stay in a host country for the purpose of continuing treatment or benefitting from social assistance guaranteed by the State. The Court noted that only under “very exceptional circumstances” may health conditions be a ground for not returning an alien. P. Lorenzen, one of the judges of the ECtHR, found it problematic to define this term.266 However, the Court has so far defined “exceptional circumstances” as those accepted in D. v. The United Kingdom. Namely, there are convincing 261 A. Szklanna, op. cit., p. 230. 262 H. Lambert, The position of aliens…, op. cit., p. 29. 263 The quoted examples refers to cases in which the risk of inhuman treatment is related to circumstances, the authorities of a given State take no direct responsibility for. See: S. Palmer, “aids, Expulsion and Article 3 of the European Convention on Human Rights,” European Human Rights Law Review, Issue 5, 2005, p. 536. 264 ECtHR 2 May 1997, D. v. The United Kingdom, Application No. 30240/96. 265 Ibidem, para. 49. 266 P. Lorenzen, op. cit., p. 27.

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humanitarian grounds, the applicant is at an advanced or a terminal stage of an illness and would be deprived of proper medical care and family support upon his return. The decision confirms that the above-quoted case has become the paradigm case for understanding the term “exceptional circumstances.”267 To summarize, arbitrary expulsion of an alien by a State Party may engage the responsibility of that State under the Convention where substantial grounds are shown for believing that the person concerned, if deported to his country of origin or any other country would face a real risk of incurring serious harm caused by any identified or unidentified person or public or private entity. In such case, Article 3 implies an absolute obligation not to deport an alien to that country. Controversy Concerning the Application of Non-Refoulement Principle Undoubtedly, the application of the principle of non-refoulement has been undermined since the September 11 attacks in the usa.268 A debate on combating international terrorism was outweighed by calls for striking a proper balance between State security and liberty of an individual. Injunctions banning the application of drastic treatment of aliens in the fight against terrorism have met with increasing criticism as they lack realism and are evidence of the ineffectiveness of the fight against this phenomenon. After the 7 July 2005 bombings in London, the British Prime Minister Tony Blair announced that “the world has changed” and that there was an urgent need for a different interpretation of Article 3 of the echr. As a result of the incidents, some countries expressed their opinion that the threat calls for a fundamental change in the approach towards the non-refoulement principle.269 They claimed that the prohibition against refoulement should be weighed against the threat the alien poses to national security and its absolute nature be derogated.

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267 S. Palmer, aids, Expulsion…, op. cit., p. 536. 268 R. Bruin, K. Wouters, “Terrorism and the Non-derogability of Non-refoulement,” International Journal of Refugee Law, Vol. 15, No. 1, 2003, pp. 5–29. See also: L. Arbour, “In Our Name and On Our Behalf,” International and Comparative Law Quarterly, Vol. 55, 2006, pp. 511–526. 269 See: Statement of Lithuania, Portugal, Slovakia and the United Kingdom in case of A. v. The Netherlands, ECtHR 20 July 2010, Application No. 4900/06 and in case of Ramzy v. The Netherlands, Decision on admissibility, ECtHR 27 May 2008, Application No. 25424/05. See also: S. Bourgon, “The Impact of Terrorism on the Principle of ‘Non-refoulement’ of Refugees: the Suresh Case Before the Supreme Court of Canada,” Journal of International Criminal Justice, No. 1, 2003.

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There appears to be a question of how to balance the right of a State to expel an alien suspected of terrorism against the obligation to respect basic human rights. The answer can be found in international jurisprudence. The European Court of Human Rights emphasized, on many occasions, that Article 3 of the echr justifies the protection rendered to an alien regardless of his individual characteristics, and their past conduct, no matter how reprehensible it might be. The above-mentioned Chahal v. The United Kingdom case was a turning point regarding protection of lawful aliens suspected of terrorist activity from being expelled. The Court stressed that the protection under Article 3 of the echr prohibits, in absolute terms, expelling an alien to a country where there is a risk of torture, inhuman or degrading treatment or punishment.270 When granting it, there is no room for balancing the risk between the rights of an alien and the threats his stay may pose to the State. A State’s responsibility to protect an individual should outweigh the threat he presents.271 The ECtHR, moreover, rejected the diplomatic assurances of the Indian Government to provide the applicant with guarantee of safety and protection from ill-treatment and concluded that they were insufficient and inadequate.272 The Court noted that Article 3 of the echr enshrines one of the most fundamental values of democratic society. It subsequently confirmed that it understands the great difficulty States face in protecting their communities from terrorist violence. British authorities, however, were not successful in convincing the ECtHR that national security is an argument important enough to weaken the protection under Article 3 of the Convention.273 Unfortunately, not every country in the Council of Europe agreed with the Court that Article 3 of the echr provides aliens with absolute protection in the event of expelling him for being an alleged danger. The United Kingdom, though, questioned the Court’s jurisprudence concerning the prohibition against refoulement as it proved that provisions of Article 3 of the echr are not absolute in cases where a State wants to expel an individual from its territory. Where there is a threat to national security, States should be allowed to balance the risk of torture to the individual if deported to a third country against 270 N. Sitaropoulos, “The Role and Limits of the European Court of Human Rights In Supervising State Security and Anti-terrorism Measures Affecting Aliens’ Right,” in E. Guild, A. Baldaccini, Terrorism and the Foreigner, A Decade of Tension around the Rule of Law in Europe, Martinus Nijhoff Publishers, 2007, p. 89. 271 ECtHR 15 November 1996, Chahal v. The United Kingdom, Application No. 22414/93. 272 Ibidem, paras. 37, 92, 105. 273 M.A. Nowicki, Europejski Trybunał Praw Człowieka. Orzecznictwo, tom 2, Zakamycze, Kraków, 2002, p. 176.

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the risk of national security if he is not deported.274 The uk policy was followed by Italy, Lithuania, Portugal and Slovakia and they all intervened, under Article 36(2) of the echr, in two cases pending before the Court: Ramzy v. The Netherlands and A. v. The Netherlands.275 What is more, the Prime Minister Tony Blair then put forward the idea to denounce the European Convention on Human Rights and ratify it again with a reservation to the Chahal precedent. Eventually the idea was abandoned. The United Kingdom, however, still insisted on weakening the non-refoulement principle. The British Government agreed to apply “diplomatic assurances276” in justifying the expulsion of terrorist suspects to countries where they would be threatened with torture and other forms of ill-treatment in exchange for guarantees of their humanitarian treatment.277 The European Court of Human Rights, stressed, inter alia, in the Saadi v. Italy case, that: States face immense difficulties in modern times in protecting their communities from terrorist violence (…). It cannot therefore underestimate the scale of the danger of terrorism today and the threat it presents to the community. That must not, however, call into question the absolute nature of Article 3. Accordingly the Court cannot accept the argument of the United Kingdom Government, (…) that a distinction must be drawn under Article 3 between treatment inflicted directly by a signatory State and treatment that might be inflicted by the authorities of another State, and that protection against this latter form of ill-treatment should be weighed against the interests of the community as a whole (…). Since protection against the treatment prohibited by Article 3 is absolute, that 274 G. Echeverria, “National Security Cases: Non-refoulement and the Jurisprudence of the European Court,” in Non-refoulement Under Threat, Proceeding of a Seminar held by the Redress Trust (redress) and The Immigration Law Practitioners’ Association (ilpa), 16.05.2006, London, p. 32. 275 Under Art. 36(2) of the echr: “The President of the Court may, in the interest of the proper administration of justice, invite any High Contracting Party which is not a party to the proceedings or any person concerned who is not the applicant to submit written comments or take part in hearings.” 276 Diplomatic assurances mean written guarantees by the authorities of the destination State to the expelling State that the person to be sent will not be subject to torture or to other violations of human rights. 277 W. Schabas, “Non-refoulement,” Background Paper for the technical workshop on Human Rights and International Cooperation in Counter-Terrorism, Liechtenstein, 2007. See also: D. Moeckli, “Saadi v. Italy: The Rules of Game Have Not Changed,” Human Rights Law Review, Vol. 8, No. 3, 2008.

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provision imposes an obligation not to extradite or expel any person who, in the receiving country, would run the real risk of being subjected to such treatment. As the Court has repeatedly held, there can be no derogation from that rule.278 Furthermore, the ECtHR has repeatedly held that diplomatic assurances are highly unlikely to be sufficient to allow a transfer to countries where there are reliable reports that the national authorities tolerate torture.279 A similar approach has also been taken by the Human Rights Committee which criticized the so-called diplomatic assurances, claiming that a State Party, when expelling an alien, may still violate the prohibition of torture, inhuman and degrading treatment or punishment, regardless of the aforementioned assurances.280 Such violation was indicated in Alzery v. Sweden.281 The author of the communication, an Egyptian national, sought refugee status in Sweden. The Swedish authorities ordered his return to his country of origin because of his alleged ties to a terrorist organization, after having obtained assurances from the Egyptian authorities that the author would be treated in accordance with international law and awarded a fair trial upon his return to Egypt. Despite the assurances, when he found himself in Egypt he was imprisoned, tortured and subjected to inhuman treatment. The Human Rights Committee noted that Sweden was in breach of Article 7 of the iccpr by exposing the alien to a real risk of torture and maltreatment. Diplomatic assurances, the Committee added, contained no mechanism for monitoring their enforcement.282 Swedish authorities made no arrangements outside the text of the assurances themselves to guarantee their effective implementation. In conclusion, the Committee found that the State Party failed to measure whether diplomatic assurances were real enough to eliminate the risk of ill-treatment. The Committee Against Torture is of the same opinion since it ruled, in Agiza v. Sweden, that protection under the Convention Against Torture is absolute, even in the context of national security considerations and “the procurement of 278 Ibidem, paras. 137–138. 279 See for example: ECtHR 23 October 2008, Soldatenko v. Ukraine, Application No. 2440/07, para. 73; ECtHR 21 January 2011, M.S.S. v. Belgium and Greece, Application No. 30696/09, para. 354. 280 M. Kmak, “Stosowanie zasady non-refoulement w orzecznictwie Komitetu Praw Człowieka onz,” in M. Zdanowicz, Status prawny cudzoziemca w Polsce, “Temida 2,” Białystok, 2007, p. 84. 281 Alzery v. Sweden, Communication No. 1416/2005, decision of 25 October 2006. 282 Ibidem, para. 11.5.

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diplomatic assurances, which, moreover, provided no mechanism for their enforcement, did not suffice to protect against [the] manifest risk.”283 Moreover, the United Nations Security Council emphasized that States must ensure that any measures taken to combat terrorism comply with their obligations under international human rights law. States, therefore cannot fight against terrorism at all costs. 6 Conclusion International law is based on the sovereignty of States which means that States have a right to protect their security and public order. At the same time, it also provides an extensive list of human rights that limit or exclude the arbitrary nature of State authorities or the abuse of their rights. This chapter has referred to the selected substantive rights of the international human rights treaties which guarantee aliens protection against arbitrary expulsion and to the manner in which they have been applied in practice and interpreted, inter alia, by the hrc and the ECtHR. The following provisions have been carefully discussed: • • • •

the right of an alien to respect for private and family life protection; the non-discrimination principle; prohibition against expelling an individual from his own country; the non-refoulement principle.

States Parties should ensure that the provisions of the international human rights treaties and the rights under them are made known to aliens within their jurisdiction. When considering an expulsion, public authorities should remember that such a decision should not be contrary to provisions under international human rights treaties. Any discrimination against aliens enjoying their rights is forbidden, meaning expulsion of aliens should be carried out in accordance with the principle of non-discrimination. Both the Human Rights Committee and the European Court’s case law under Article 17 of the iccpr and Article 8 of the echr amply demonstrate that there are circumstances in which the expulsion of an alien would be considered an arbitrary expulsion. Furthermore, the ECtHR has elaborated various criteria to assess the proportionality of an expulsion decision in order to 283 Agiza v. Sweden, Communication No. 233/2003, decision of 20 May 2005, paras. 13.4 and 13.8.

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­ reclude arbitrary expulsion. It is assumed that an expelling State has an p obligation to respect the rights of an alien to protect private life and family life as well as to strike a fair balance in weighing its own interests against those of an alien. The prohibition against expelling an individual from their own country provides protection from so-called “arbitrary uprooting,” meaning that one cannot expel an alien to a third country, making his return to current State of residence impossible. Domestic authorities are also obliged to provide an alien with sufficient guarantees protecting his being arbitrarily returned to their country of origin, where there is a risk of exposing him to torture, inhuman or degrading treatment. Although the prohibition against refoulement in the Refugee Convention is subject to exceptions on national security and public safety grounds, no such exceptions can be found in echr, nor in universal human rights law in the light of the Convention Against Torture and the International Covenant on Civil and Political Rights: there is no personal, temporal or spatial limit to its application. Thus, it applies even in exceptional circumstances, including a declared state of emergency. Neither does the Refugee Convention prescribe a treaty monitoring body such as the Human Rights Committee or Committee Against Torture. There is no individual right to complain to an international body about violating the aforementioned Convention. National security concerns shall not justify alien’s expulsion to a country where they would face treatment contrary to Article 33 of the Convention Relating to the Status of Refugees, Article 7 of the iccpr or Article 3 of the echr. The challenge posed by terrorism and difficulties States face in combating it, shall not, in any way, question the prohibition expressed in principle of non-refoulement.

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Procedural Measures and Guarantees to Which an Alien is Entitled To 1 Introduction Theory and practice concerning the requirements for the expulsion of lawful aliens have evolved over the centuries. It is a common knowledge that expelling an alien who is lawfully in the territory of the host State must meet necessary procedural requirements.1 A list of requirements protecting against arbitrary expulsion may be found not only in the case law of treaty bodies (international jurisprudence) but also in the practice of States.2 The list encompasses: the guarantee that no lawful alien be expelled from the territory of a State except on reasonable grounds and pursuant to a decision made in accordance with law; the prohibition of discrimination; that the decision be communicated to the expelled person along with the grounds it is based on; that the alien be given an opportunity to question the legality and validity of the expulsion order in an appropriate legal procedure; and the order of expulsion shall be in writing.3 Since expulsion proceedings are not criminal proceedings, the procedural guarantees are not as broad as those for criminal proceedings.4 The order to expel must be of an individual character and cannot lead to infringement of aliens’ freedoms and rights protected under international human rights law. In this chapter I will identify what procedural guarantees are available to lawful aliens who are subject to an expulsion decision. I will first make reference to procedural requirements concerning the expulsion decision imposed on administrative bodies. Then, I will examine the alien’s right to submit reasons 1 G.S. Goodwin-Gill, International Law…, op. cit., p. 263; See also: R. Arnold, op. cit., p. 104; R. Jennings, A. Watts, Oppenheim’s International Law, ninth ed., Vol. 1 Peace, 1992, p. 940. 2 R. Plender, International Migration Law, second ed., Martinus Nijhoff Publishers, Dordrecht, 1988, p. 459. 3 L. Sohn, T. Buergenthal, “The Movement of Persons Across the Borders,” Studies in Transnational Legal Policy, Vol. 23, Washington d.c., American Society of International Law, 1992, p. 89. 4 It has to be emphasized that expulsion is not a punishment from criminal law point of view. See: G.S. Goodwin-Gill, International Law…, op. cit., pp. 238–239; S. Oda, “Legal Status of Aliens,” in M. Sorensen, Manual of Public International Law, St. Martin’s Press, New York 1968, pp. 482–483.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004265448_005

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against expulsion, the right to have his case reviewed, the right to an effective remedy against such decision, listing the main elements that are required for a remedy to be effective, and the right to counsel. Finally, I will discuss diplomatic protection. 2

Legal Requirements of the Expulsion Decision

The basic aim of the analysed right of an alien is to provide him with procedural guarantees against arbitrary expulsion.5 It should be noted that the regulation of Article 13 of the iccpr, Article 1 of Protocol No. 7 to the echr, Article 22(6) of the achr and Article 12(4) of the achpr stipulate that an alien who is lawfully in the territory of a State may be expelled only in pursuance of a decision reached by a court or administrative authority in accordance with domestic law.6 These treaties impose an obligation on States Parties to have a law which regulates the matter of expulsion and expect them to follow it strictly. This then contributes to making the proceedings of expulsion predictable and helps to avoid abuse of power and precludes arbitrariness. As V.O. Orlu Nmehielle indicates “the phrase ‘a decision reached in accordance with law’ [under Article 12(4) of the Charter] seems to suggest that an expulsion must have a judicial or quasi-judicial character, where there can be guaranteed some measure of due process.”7 It follows from the content of the aforementioned provisions that expulsion of an alien lawfully in the territory of a State – which is a party to these instruments – can only be compatible with the international obligations of that State if it is decided in accordance with “the law,” namely the domestic law. Compliance with international law is, to some extent, dependent here on compliance with internal law. In the view of the International Court of Justice: it is clear that while ‘accordance with law’ as thus defined is a necessary condition for compliance with the above-mentioned provisions [i.e. Article 13 of the iccpr and Article 12(4) of the achpr], it is not the sufficient condition. First, the applicable domestic law must itself be compatible with the other requirements of the Covenant and the African Charter; second, an expulsion must not be arbitrary in nature, since 5 S. Jagerskiold, op. cit., p. 184. 6 M. Nowak, u.n. Covenant…, op. cit., pp. 294–295. 7 V.O. Orlu Nmehielle, The African Human Rights System: Its Laws, Practice, and Institutions, Martinus Nijhoff Publishers, 2001, pp. 116–117.

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protection against arbitrary treatment lies at the heart of the rights guaranteed by the international norms protecting human rights.8 It has been stated that the above-mentioned regulations apply expressis verbis to the principle of legality.9 Therefore, the order to expel cannot be arbitrary, which means it must be effected by a competent authority by means of a decision reached in accordance with the national law of the State in question.10 Consequently, unfettered administrative discretion without clear legislative directives and adequate notice to an alien of the reasons on which a decision to expel him is made, and these reasons raised by the expelling State being of a vague and indefinite character, will not be sufficient to meet the requirement of legality. In 1961, the Asian-African Legal Consultative Committee adopted principles stressing, inter alia, the requirement of legality in relation to the adoption of an expulsion or deportation order: “A State shall have the right to order expulsion or deportation of an undesirable alien in accordance with its local laws, regulations and orders.”11 Regulations concerning expulsion of aliens, prescribed by domestic law of a State must be consistent with provisions under international human rights law. The Human Rights Committee, when dealing with the expulsion of aliens, reviews not only procedural aspects, but also the substantive requirements of the law.12 However, the Committee believes that interpretation of national law lies within the competence of State authorities.13 In Maroufidou v. Sweden,14 8 9 10 11

12 13 14

Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment of the Court of International Justice of 30 November 2010, para. 65. The principle of legality requires that the expulsion of aliens be the result of a decision reached in accordance with law. G.S. Goodwin-Gill, International law…, op. cit., p. 263. A State should observe its laws following the Roman maxim: Patere legem quam ipse fecisti. Principles concerning admission and treatment of aliens adopted by the Asian-African Legal Consultative Committee reproduced in Yearbook of the International Law Commission, 1961, vol. II, A/CN.4/139, Art. 16 paras. 1 and 3. M. Nowak, u.n. Covenant…, op. cit., p. 295. A. Michalska, op. cit., p. 142. Maroufidou v. Sweden, Communication No. 58/1979, decision of 9 April 1981. A Greek citizen, granted a residence permit in Sweden, arrested on suspicion of being involved in a plan to abduct a former member of the Swedish Government, alleged that the decision to expel her was arbitrary. The Swedish Government based its decisions on the Aliens Act which provides that an alien may be expelled from Sweden “if there is concrete reason to assume that he belongs to, or works for, a terrorist organization or group.” The Swedish

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the Committee stated that the “interpretation of domestic law is essentially a matter for the courts and authorities of the State Party concerned. It is not within the powers or functions of the Committee to evaluate whether the competent authorities of the State party in question have interpreted and applied the domestic law correctly, (…), unless it is established that they have not interpreted and applied it in good faith or that it is evident that there has been an abuse of power.”15 The Committee can only assess whether public authorities acted in good faith or if there was a significant abuse of power. Such moderate approach has been called the Maroufidou formula.16 A similar approach is applied by the European Court of Human Rights, which under Article 1 of Protocol No. 7 to the echr examines whether a decision to expel was taken by a competent authority in accordance with the provisions of substantive law and with the relevant procedural rules.17 In Bolat v. Russia, the ECtHR observed a violation of Article 1 of Protocol No. 7, since the alien was expelled from Russia with no judicial decision issued, as was required by national law. The Court indicated that there had been no decision to expel the alien reached in accordance with law.18 In turn, the African Commission on Human and Peoples’ Rights in Modise v. Botswana ruled that “while the decision as to who is permitted to remain in a country is a function of the competent authorities of that country, this decision should always be made according to careful and just legal procedures, and with due regard to the acceptable international norms and standards.”19 In other words, as Judge C. Trindade indicates, “it is not sufficient that state authorities proceed in accordance with the law, as this latter must be in conformity with the African Charter, and reflect the basic requirement of justice.”20

15 16 17

18 19 20

Government submitted detailed information on all the suspicions to justify the decision and prove it was made in accordance with the law. The author of the Communication questioned the allegations mentioned by the State Party and called them inconclusive. The Human Rights Committee held itself to be incompetent in this matter but was of the view that there was no violation of the Art. 13 of the Covenant. Ibidem, para. 10.1. M. Nowak, u.n. Covenant…, op. cit., p. 295. Council of Europe, Explanatory Report on Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ets, No. 117, para. 11. See also: ECtHR 2 December 1987, Bozano v. France, Application No. 9990/82. ECtHR 5 October 2006, Bolat v. Russia, Application No. 14139/03, paras. 81–82. John K. Modise v. Republic of Botswana, Communication No. 97/93, decision of African Commission on Human and Peoples’ Rights of 6 November 2000, para. 84. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment of the Court of International Justice of 30 November 2010, separate opinion of Judge C. Trindade, para. 121.

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Similarly, in another case, the African Commission held that “under this provision [Article 12(4)] each and every State Party has the power to expel non-nationals who are legally admitted into their territory. However, in doing so the Charter imposes an obligation on States Parties to have laws which regulate such matters and expects them to follow it strictly. This contributes towards making the process predictable and also helps to avoid abuse of power.”21 In literature, it is emphasized that in order to eliminate arbitrariness, the law regulating expulsion of aliens should embrace two elements: accessibility and foreseeability.22 The first means the possibility to get acquainted with the respective rules, requiring information about the regulation to be available in a written form. The latter, however, requires the norms to be formulated clearly and precisely so that the consequences of aliens’ conduct can be foreseeable. The above-mentioned criteria relate to the quality of law. The law must also afford a degree of legal protection against arbitrary interference by the authorities.23 The more precisely and clearly the grounds of expulsion are defined, the better a State complies with its obligation to respect the rights viewed in Article 13 of the iccpr, Article 1 of Protocol No. 7 to the echr, Article 22(6) of the achr and Article 12(4) of the achpr. It is worth noting that the duty to order an expulsion in accordance with law has also been envisaged in the following conventions on human rights protection: • Article 22(2) of the International Convention on the Protection of the Rights of All Migrants Workers and Members of Their Families which states that migrant workers and members of their families may be expelled only in pursuance of a decision taken by the competent authority in accordance with law; • Article 32(2) of the Convention Relating to the Status of Refugees which says that the expulsion of an alien lawfully in the territory of a State Party shall be only in pursuance of a decision reached in accordance with due process of law; • Article 31 of the Convention Relating to the Status of Stateless Persons – as well as Article 32(2) of the Convention Relating to the Status of Refugees. 21 22 23

Kenneth Good v. Republic of Botswana, Communication No. 313/05, decision of African Commission on Human and Peoples’ Rights of 26 May 2010, para. 203. M. Pellonpaa, op. cit., pp. 103–110; P. Boeles, M. den Heijer, G. Lodder, K. Wouters, European Migration Law, Antwerp-Oxford-Portland, 2009, pp. 150. ECtHR 24 April 2008, C.G. and others v. Bulgaria, Application No. 1365/07, para. 39.

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To summarize, insistence on compliance with national law and with the specific procedural requirements of Article 13 of the iccpr, Article 1 of Protocol No. 7 to the echr, Article 22(6) of the achr and Article 12(4) of the achpr aims at protecting an individual’s opportunities to present his case against arbitrary expulsion and guaranteeing that decisions on expulsion are well-informed. 3

Right to Receive Notice of Expulsion Proceedings

A decision to expel together with its grounds and justification should be submitted to an alien in a language he understands. An alien has a right to know the reasons for his expulsion and the State is obliged to provide them. The greatest problem, however, is the scope and the precision of the grounds on which expulsion is to be carried out. B. Gronowska rightly points out that interpretation of the grounds shall be done according to the exceptiones non sunt extendendae rule (exceptions shall not be construed broadly) and remain in accordance with the principle of proportionality.24 The discussed right encompasses the obligation to inform an alien of the grounds for the expulsion and the evidence on which it is based in a clear manner, so that the person concerned can defend himself in the proceedings. In other words, the expulsion decision should be reasoned. The International Court of Justice in the landmark case of Ahmadou Sadio Diallo stresses that: The decree confines itself to stating that the ‘presence and conduct [of Mr Diallo] have breached Zairean public order, especially in the economic, financial and monetary areas, and continue to do so’. The first part of this sentence simply paraphrases the legal basis for any expulsion measure according to Congolese law, since Article 15 of the 1983 Legislative Order permits the expulsion of any alien ‘who, by his presence or conduct, breaches or threatens to breach the peace or public order’. As for the second part, while it represents an addition, this is so vague that it is impossible to know on the basis of which activities the presence of Mr. Diallo was deemed to be a threat to public order.25 24

25

B. Gronowska, “Wydalenie cudzoziemców – wybrane problemy międzynarodowych standardów praw człowieka oraz prawa polskiego,” in T. Jasudowicz (ed.), C. Mik (ed.), O prawach człowieka w podwójną rocznicę paktów. Księga pamiątkowa w hołdzie profesor Annie Michalskiej, Toruń 1996, p. 198. See: S. Jagerskiold, op. cit., p. 184. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment of the Court of International Justice of 30 November 2010, para. 72.

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At the European level, the Committee of Ministers has recommended that: The removal order should be addressed in writing to the individual concerned either directly or through his authorized representative. If necessary, the addressee should be provided with an explanation of the order in a language he/she understands. The removal order shall indicate the legal and factual grounds on which it is based [and] the remedies available, whether or not they have a suspensive effect, and the deadlines within which such remedies can be exercised.26 What is more, the Parliamentary Assembly of the Council of Europe stated that a decision to detain during an expulsion procedure should be considered null and void if, at the moment of the notification, the person concerned is not informed, in writing and in a language that he understands, of his rights in these circumstances.27 The Lupsa v. Romania case is a good example of violation of the right to be informed about the reasons for expulsion.28 The public authorities confined themselves to claim that in this case the alien’s stay in Romania was undesirable for reasons of national security. The Court noted that, irrespective of the protection under Articles 3, 8 together with Article 13 of the echr, an alien is entitled to be protected under Article 1 of Protocol No. 7. It commented that in the discussed case no criminal proceedings had been brought against the applicant either in Romania or in any other country. The Romanian authorities failed to provide the applicant with any indication of the offence he was suspected of. Domestic law was infringed as well, since he had not been sent the order issued against him until the very day of the expulsion. Further, authority officials did not lodge any evidence based on reasons of national security with the Court of Appeal. The domestic court did not verify whether the applicant really did represent a danger to national security and dismissed all requests for adjournment, preventing the applicant’s lawyer from studying the order issued by the prosecutor. The ECtHR submitted that no person declared undesirable in the interests of national security shall be deprived of all guarantees against arbitrariness. Therefore, the ECtHR stated that there was a breach to Article 1 of Protocol No. 7, because the applicant was not afforded the minimum guarantees against arbitrary expulsion during court proceedings. 26 Committee of Ministers, Twenty Guidelines of Forced Return, September 2005, Guideline 4.1. 27 Parliamentary Assembly of the Council of Europe, Recommendation 1624(2003): Common policy on migration and asylum, 30 September 2003. 28 ECtHR 8 June 2006, Lupsa v. Romania, Application No. 10337/04.

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In turn, in Gelerie v. Romania, the alien, who was a political refugee residing in Romania for many years, and married to a Romanian with whom he had a child, was not given the reasons for the expulsion order.29 He was simply declared persona non grata by the prosecutor at the Bucharest Court of Appeal and banned from entering Romania for ten years. His appeal was dismissed. The Romanian court found that the evidence supporting a decision to declare an alien persona non grata on the grounds of national security could not, in any circumstances, be communicated to the alien, since that information was classified as secret by law. The ECtHR pointed that the domestic court (Bucharest Court of Appeal) had conducted a purely formal examination of the expulsion decision. Furthermore, the Court of Appeal had no information concerning Mr Geleri’s alleged offences and was unable to decide whether he indeed posed any danger to national security or public order. The ECtHR stressed that the domestic authorities had not provided the alien with the least indication of the offences he was found guilty of, which led to him being regarded as a threat to national security and therefore they violated Article 1 of Protocol No. 7, since the expulsion decision precluded guarantees against arbitrariness.30 In C.G. and others v. Bulgaria, in turn, the expulsion was carried out the day the order was issued, which prevented the alien from enjoying procedural guarantees under Article 1 of Protocol No. 7. The expulsion decision was based on unspecified information contained in a secret internal document. Lack of any knowledge of the facts which had served as a basis for such assessment meant that the applicant was not able to present his case adequately in the ensuing appeal to the Minister of Internal Affairs and in the judicial review proceedings.31 The ECtHR decided that the national security considerations Bulgarian authorities referred to under paragraph 2 of the Article 1 to Protocol No. 7, cannot be applied, and that a breach of the above-mentioned regulation was committed. Finally, in Nolan and K.v. Russia, the ECtHR noted that a State violates Article 1(1) to Protocol No. 7 when a decision to expel is not communicated to an alien for three months, he is not allowed to submit reasons against their expulsion or have his case reviewed with the participation of his counsel.32 29 30 31 32

ECtHR 15 February 2011, Geleri v. Romania, Application No. 33118/05. See : ECtHR 14 June 2007, Bashir and Others v. Bulgaria, Application No. 65028/01, paras. 41–42. Ibidem, paras. 40–48. ECtHR 24 April 2008, C.G. and others v. Bulgaria, Application No. 1365/07, para. 46. See also: ECtHR 26 October 2011, M. and Others v. Bulgaria, Application No. 41416/08. ECtHR 12 February 2009, Nolan and K.v. Russia, Application No. 2512/04, para. 115.

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Right to Submit Reasons against Expulsion

The right to submit reasons against expulsion is another procedural guarantee. It reflects a principle of fundamental justice known as audi alteram partem (the other party should also be heard). The right to submit evidence against expulsion gives an alien the opportunity to respond to the evidence against him.33 D. Weissbrodt emphasized that aliens suspected of terrorism should not be expelled without the possibility of challenging their expulsion.34 The right may be exercised through various means, in particular by means of a hearing. Although Article 13 of the Covenant does not expressly provide an alien with the right to a hearing, the Human Rights Committee stated that a decision to expel an alien issued without giving him the possibility to an appropriate hearing may violate Article 13 of the Covenant.35 It should be noted that the right to a hearing is not as far-reaching as in criminal proceedings, under Article 14(3) of the Covenant. The formulation “to submit the reasons against his expulsion” envisaged in Article 13 of the iccpr was adopted from Article 32(2) of the Convention Relating to the Status of Refugees, which talks of “submitting evidence to clear himself.”36 The Human Rights Committee, in its travaux préparatoires on the Covenant, changed the wording but did not change the right as such. In literature, it is emphasized that the right to submit reasons against expulsion should be granted in the form of an oral hearing.37 As an example, Hammel v. Madagascar may be quoted. An alien, a French national, submitted a communication to the Human Rights Committee.38 He lived in Madagascar for 19 years, running a law practice. He defended the principal leaders of the political opposition as well as other political prisoners. The order to expel him was communicated to him on 11 February 1982, the day it was issued. He was given two hours to pack his belongings and within twenty hours was placed on a plane leaving for France. Waiting for the plane, he was kept in detention, with no possibility to contact a competent official, embassy or any family member. 33 34

J. Chlebny, Ochrona interesu…, op. cit., p. 21. Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Prevention of Discrimination, The Rights of Non-citizens, Final Report of the Special Rapporteur, Mr David Weissbrodt, 26 May 2003, E/CN.4/Sub.2/2003/23., para. 32. 35 Concluding observations of the Human Rights Committee: Sweden, 1.11.1995, A/51/40 (Vol. 1), para. 88. 36 M. Nowak, u.n. Covenant…, op. cit., p. 297. 37 Ibidem. 38 Hammel v. Madagascar, Communication No. 155/1983, decision of 3 April 1987.

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The Human Rights Committee pointed to violation of Article 13 of the Covenant by the authorities of Madagascar, stating that there were no “compelling reasons of national security against his expulsion, he was not allowed to submit the reasons against his expulsion and to have his case reviewed by a competent authority within a reasonable time.”39 It is, therefore, held that an alien must be given full facilities for pursuing his remedy against expulsion.40 Explanatory Report on Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms specifies that an alien may exercise the right to submit his reasons against expulsion even before being able to have his case reviewed.41 The provisions of domestic legislation shall then be applied. An alien facing expulsion for reasons of national security must, as the ECtHR claimed on many occasions, be given a right to challenge the executive’s assertions that national security is at stake.42 In Kaushal and Other v. Bulgaria, for example, the European Court stated that the decision to expel Mr Kaushal made no mention of the factual grounds on which it was made.43 It simply referred to the applicable legal provisions and stated that his presence in Bulgaria represented a “serious threat to national security.”44 That conclusion was based on unspecified information contained in a secret internal document. Therefore, in the Court’s opinion, the national courts failed to gather evidence to corroborate or dispel the allegations serving as a basis for the decision to expel the applicant and subjected this decision to a purely formal examination, with the result that the applicant was not able to present his case adequately and review in the light of possible arguments militating against his expulsion. The domestic courts’ actions, therefore, went contrary to Article 1(1)(b) of Protocol No. 7. It should be stressed that invoking national security grounds cannot be a sufficient reason for a State to expel an alien, as it is far too general and requires specifying the charges he would have to face. The execution of the right to defence is possible when an alien is familiar enough with the grounds 39 40

Ibidem, paras. 18.2, 19.2, 20. P. Boeles, Fair Immigration Proceedings in Europe, Martinus Nijhoff Publishers, The Hague 1997, p. 123. 41 Explanatory Report on Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ets, No. 117, para. 13.1. 42 ECtHR 20 June 2002, Al-Nashif v. Bulgaria, Application No. 50963/99, paras. 123 and 124. 43 ECtHR 2 September 2010, Kaushal and others v. Bulgaria, Application No. 1537/08, para. 30. 44 Ibidem.

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for his expulsion to be able to present his case and try to challenge the findings made by authorized bodies. In the light of European standards adopted in Recommendation (2004)20 of the Committee of Ministers to Member States on judicial review of administrative acts, an administrative body should make available to the court all documents and information relevant to the case, unless national law provides for exceptions in important cases.45 The recommendation, invoking the jurisprudence of the European Court of Human Rights is reminiscent of the obligation to disclose all the relevant administrative file and facts on which the administrative act was based as a requirement for a fair trial.46 As far as documents containing sensitive data (those of national security, for example) are concerned, special protective measures are applied, although not specified.47 Therefore, the case law of the European Court of Human Rights should be invoked, especially that concerning the use of secret documents. The ECtHR recognized that the use of confidential materials may be permitted as long as safety procedures are respected so that no secret information nor its source is revealed. The Court, although excluding the possibility to refuse access to case files for national security reasons, suggested that procedures are applied to make sure that a party is given procedural guarantees, namely has access, to certain extent, to the administrative files as long as this does not threaten the disclosure of the nature and source of secret information.48 The Court gave Canada as an example of a State where it is a common practice for a party to have access to a summary of the course of the proceedings in camera and that a security-cleared counsel is entitled to participate in the proceedings.49 At Inter-American level, the American Convention on Human Rights in Article 8 explicitly provides that: 1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights 45 46 47 48

49

Art. 4 c of the Recommendation (2004)20 of the Committee of Ministers to member states on judicial review of administrative acts of 15 December 2004. Art. 62 of the Explanatory Memorandum as an integral part to the Recommendation. Art. 64 of the Explanatory Memorandum. ECtHR 15 November 1996, Chahal v. The United Kingdom, Application No. 22414/93, paras. 131, 144. See also: ECtHR 19 February 2009, A. and Others v. The United Kingdom, Application No. 3455/05, paras. 205, 209, 210 and 215. J. Chlebny, Sądowa kontrola…, op. cit., p. 28.

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and obligations of a civil, labor, fiscal, or any other nature. 2. Every person accused of a criminal offence has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: a) the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court; b) prior notification in detail to the accused of the charges against him; c) adequate time and means for the preparation of his defence; d) the right of the accused to defend himself personally or to b assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel; e) the inalienable right to be assisted by counsel provided by the State, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law; f) the right of the defence to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts; g) the right not to be compelled to be a witness against himself or to plead guilty; and the right to appeal the judgment to a higher court. The Inter-American Commission on Human Rights in the “Report on Immigration in the United States: Detention and Due Process” stressed, inter alia, that “while many of these guarantees are articulated in a language that is more germane to criminal proceedings, they must be strictly enforced in immigration proceedings as well, given the circumstances of such proceedings and their consequences.”50 The Commission has observed that the due process rights set forth in Article 8 of the American Convention “establish a baseline of due process to which all immigrants, whatever their situation, have a right.”51 The Inter-American Court deems that “for ‘the due process of law’ a defendant must be able to exercise his rights and defend his interests effectively and in 50 51

The Inter-American Commission on Human Rights, Report on Immigration in the United States: Detention and Due Process, 30 December 2010, OEA/Ser.L/V/II., Doc. 78/10, para. 57. Ibidem, para. 58.

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full procedural equality with other defendants.”52 In other words, if the guarantees concerning expulsion are not effective they become meaningless and incapable of preventing denial of justice. Moreover, in the Court’s opinion: “the right to due process of law should be recognized within the framework of the minimum guarantees that should be provided to all migrants, irrespective of their migratory status.”53 In this regard, the Court indicated that guarantees of the due process of law must be respected in any act or omission on the part of State bodies in a proceeding, whether of administrative, punitive or jurisdictional nature, so that an alien may defend himself adequately against an expulsion decision. The case of Loren Laroye Riebe Star, Jorge Alberto Barón Guttlein and Rodolfo Izal Elorz v. Mexico involved the deportation of three foreign priests, all of whom had resided in Mexico for many years.54 The petitioners had been detained and expelled from the country after a brief administrative process where they were not permitted to: be assisted by a lawyer; be informed of the charges levelled against them and prepare their defence; formulate their claims; and submit evidence. The Mexican authorities simply said that the three priests would be expelled “for engaging in activities not permitted under the terms of their visas.”55 The administrative proceedings to which the victims were subjected at Mexico City airport failed to comply with the right to a hearing to which aliens were entitled under Article 8 of the achr. The InterAmerican Commission on Human Rights established that the decision by Mexico’s migration authorities that led to their expulsion was taken in violation of their human rights to due process and effective judicial counsel. Therefore, the Inter-American Commission concluded that the Mexican State violated the right protected under Article 22(6) of the American Convention in the case of these three persons.56 52

53

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Inter-American Court of Human Rights, Advisory Opinion OC-16/99 of October 1, 1999, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Series A., No. 16, para. 117. Inter-American Court of Human Rights, Advisory Opinion OC-18/03 of September 17, 2003, Juridical Condition and Rights of the Undocumented Migrants, Series A, No. 18, para. 122. Inter-American Commission on Human Rights, Loren Laroye Riebe Star, Jorge Alberto Barón Guttlein and Randolfo Izal Elorz v. Mexico, Report No. 49/99 (Merits), Case No. 11.610, (April 13, 1999). See also: Raghda Habal and son v. Argentina, Report No. 64/08, Case No. 11–691, Report No. 64/08, (July 25, 2008). Inter-American Commission on Human Rights, Loren Laroye Riebe Star, Jorge Alberto Barón Guttlein and Randolfo Izal Elorz v. Mexico, Report No. 49/99 (Merits), Case No. 11.610, (April 13, 1999), para. 10. Ibidem, para. 106.

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Likewise, the African Charter on Human and Peoples’ Rights in Article 7(1) prescribes that: Every individual shall have the right to have his cause heard. This comprises: a. the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; b. the right to be presumed innocent until proved guilty by a competent court or tribunal; c. the right to defence, including the right to be defended by counsel of his choice; d. the right to be tried within a reasonable time by an impartial court or tribunal. The African Commission in Union interafricaine des droits de l’Homme and Others v. Angola recognized that “the challenges that are faced by African countries that might push them to resort to extreme measures like deportation in order to protect their nationals and economies from non-nationals”.57 The Commission, however, stated that, whatever the circumstances might be, such measures should not be taken at the expense of human rights. Finally, in case of K. Good v. Botswana, the African Commission held that “the deportation of the victim without being provided with a chance to be heard is justifiable neither on the basis of domestic laws nor with the pretext of national security.”58 5

Right to Appeal to a Competent Authority to Have the Case Reviewed

When a State decides to expel an alien, he should be granted the right to appeal to a competent authority to have the legality of the expulsion order reviewed. The need to adopt a control procedure in expulsion cases that would enable aliens to appeal to a competent authority to have their case examined was raised in 1892 at the Institute of International Law during discussions on determining elementary rules on the expulsion of aliens. It was held then that “each expelled individual, if claimed native of that State or supporting that his 57

58

Fédération internationale des ligues des droits de l’Homme v. Angola, Communication 159/96, decision of African Commission on Human and Peoples’ Rights of 11 November 1997, para. 16. Kenneth Good v. Republic of Botswana, Communication No. 313/05, decision of African Commission on Human and Peoples’ Rights of 26 May 2010, para. 207.

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or her expulsion is inconsistent with the law or international treaty, which forbids or excludes expulsion, has a right to appeal to a court or administrative tribunal, judging in full independence from the government. However, expulsion may be temporarily executed regardless of having appealed.”59 According to the Human Rights Committee, an alien must be given an access to any facilities for pursuing his remedy against expulsion so that the rights afforded in Article 13 of the iccpr will, in all the circumstances of his case, be effective.60 If an alien is given an expulsion order, he is therefore entitled to appeal to the body of higher instance to have the decision reviewed. The authority does not necessarily need to be a court, though during the travaux préparatoires on Article 13 of the Covenant, the idea was to leave the expulsion decision to the judicial system. Eventually, the idea was given up, since in some countries the expulsion procedure is in the hands of judiciary, whereas in others it is within the administrative authority’s jurisdiction. The term “competent authorities,” consequently, refers to domestic regulations, which specify the conditions of the aliens’ residence. The Committee, however, emphasized on many occasions that in situations involving the judiciary deciding about expulsion, it must respect the principles of impartiality, fairness and equality, as enshrined in Article 14(1) of the Covenant.61 The Committee regards Article 13 of the Covenant as lex specialis to Article 14(1) of the Covenant.62 Although the Committee considers it inappropriate to apply the provisions of Article 14(1) of the Covenant directly in cases concerning expulsion of lawful aliens, it allows application of rules of a due process of law, access to an independent and impartial review authority and equality of arms.63 It should be mentioned that the effectiveness of the discussed guarantee depends on whether the appeal under Article 13 of the iccpr makes States suspend an expulsion decision the moment the appeal is submitted. M. Nowak 59

60 61

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International Rules on the Admission and Expulsion of Aliens (Règles internationales sur l’admission et l’expulsion des étrangers), adopted by Institute of International Law in 1892, Art. 21. Human Rights Committee, General Comment No. 15 of 11 April 1986, para. 10. Ronald Everett v. Spain, Communication No. 961/2000, decision of 9 July 2004, para. 6.4. See also: Ahani v. Canada, Communication No. 1051/2002, decision of 29 March 2004, para. 10.9. P. Boeles, “Case Reports of the European Court of Human Rights, the Human Rights Committee and the Committee against Torture,” European Journal of Migration and Law, Vol. 10, Issue 1, 2008, p. 105. Ahani v. Canada, Communication No. 1051/2002, decision of 29 March 2004, para. 10.9. See also: K. Wouters, International Legal Standards…, op. cit., p. 419.

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presents the view that States Parties must do so, unless there are compelling reasons, such as national security.64 The Human Rights Committee also stated that if the expulsion procedure entails an alien’s arrest in the territory of a given State, then all the guarantees afforded in Articles 9 and 10 of the iccpr relating to persons deprived of liberty are applicable.65 The scope of protection under Article 13 of the Covenant is analogous to Article 1 of Protocol No. 7 to the echr. The Explanatory Report on Protocol No. 7 provides that domestic law of the State concerned should indicate a competent authority in cases concerning expulsion of aliens as well as to the provisions of substantive law and the relevant procedural rules.66 In light of the European Convention on Human Rights it is not required that the court be rigorous in expulsion proceedings as such proceedings are not covered by the scope of the right to a fair trial under Article 667 of the Convention. According to the European Commission of Human Rights, a decision to expel a person 64 65 66 67

M. Nowak, u.n. Covenant…, op. cit., p. 299. Human Rights Committee, General Comment No. 15 of 11 April 1986, paras. 9 and 10. Explanatory Report on Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ets, No. 117, para. 11. Art. 6 of the echr prescribes that: “1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice. 2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law. 3. Everyone charged with a criminal offence has the following minimum rights: (a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him; (b) to have adequate time and facilities for the preparation of his defence; (c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require; (d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; (e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

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“does not involve a determination of his civil rights and obligations or of any criminal charge against him.”68 The judgment passed in Maaouia v. France best illustrates a case where the ECtHR refused to apply Article 6(1) during an expulsion procedure.69 The applicant, a Tunisian national married to a French national, was given an order of deportation from France after six years’ imprisonment for assault. Being unaware of the decision, the applicant did not leave France and as a result was sentenced to one year imprisonment and exclusion from French territory for a period of ten years. However, after having appealed, the decision on his deportation was eventually revoked by French authorities in January 1998. The applicant complained to the ECtHR that the length of the proceedings to revoke the expulsion order led to the violation of his right to a fair trial within a reasonable time. The Court acknowledged that decisions regarding the entry, stay and deportation of aliens do not concern the determination of the applicant’s civil rights and obligations or of a criminal charge against him, within the meaning of Article 6(1) of the Convention and therefore Article 6(1) of the echr is not applicable in this case.70 The Court based its judgment on the assumption that, by adopting the provisions afforded by Article 1 of Protocol No. 7, States Parties to the Convention “clearly intimated their intention not to include proceedings for the expulsion of aliens within the scope of Article 6(1) of the Convention.”71 Judging from the way Article 1 of Protocol No. 7 is formulated, one understands that it concerns procedural guarantees in administrative proceedings.72 Consequently, it does not refer to judicial proceedings which are the main subject matter of Article 6 of the echr. It needs to be emphasized that the Court’s judgment in Maaouia v. France case met with criticism on the part of some doctrine representatives.73 Personally, I feel that it is not the viewpoint of the European Court of Human Rights that should be criticized, but rather the provision enshrined in Article 1 68 69 70 71 72

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Explanatory Report on Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ets, No. 117, para. 16. ECtHR 5 October 2000, Maaouia v. France, Application No. 39652/98. Ibidem, paras. 40–41. Ibidem, paras. 36–37. N. Sitaropoulos, op. cit., p. 102. Unlike Art. 6 of the echr, Art. 1 of the Protocol No. 7 does not include any requirements as to the form and scope of case review, in particular when it comes to the principles of impartiality, fairness and equality of arms, or right to hearing. H. Lambert, The position of aliens…, op. cit., p. 24; N. Sitaropoulos, op. cit., pp. 100–102. Two judges of the ECtHR – L. Loucaides and K. Traja – in their dissenting opinion criticized the Court’s reluctance to interpret in a liberal way the concept of civil rights and obligations.

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of Protocol No. 7, since it provides aliens with limited guarantees to use the appropriate judicial proceedings. The Explanatory Report on Protocol No. 7 helps with understanding such an interpretation of Article 1 as it clearly shows that the provision was added to the Convention in order to afford minimum guarantees to aliens in the event of expulsion from the territory of a State Party74 and does not affect the adopted interpretation of Article 6 of the echr.75 It is worth noting that the Court observed that a person expelled on national security grounds, must be given an opportunity to have the order in question examined by an impartial, independent and competent body to determine the lawfulness of the expulsion. Before that body, an alien must have the benefit of adversarial proceedings in order to present his view and question the arguments forwarded by the authorities.76 Consequently, the ECtHR refers to the principle of fair trial in cases regarding the expulsion of lawful aliens. Nevertheless, bearing in mind that the expulsion decision is, in principle, administrative in nature, attention should be drawn to the aforementioned Recommendation (2004)20 of the Committee of Ministers to Member States on judicial review of administrative acts.77 The objective of this Recommendation is to establish principles governing judicial review of administrative acts in a State governed by the rule of law. The Recommendation makes reference to the principle which says that all administrative acts must be subject to judicial review. This requirement should also be respected with regard to the acts and procedures which are not encompassed by Article 6(1) of the echr.78 “Judicial review” has been defined as the examination and 74 75 76

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Explanatory Report on Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ets, No. 117, para. 7. Ibidem, para. 16. ECtHR 8 June 2006, Lupsa v. Romania, Application No. 10337/04, para. 38; ECtHR 20 June 2002, Al-Nashif v. Bulgaria, Application No. 50963/99, para. 123. See also: R. White, C. Ovey, The European Convention on Human Rights, fifth ed., Oxford University Press, 2010, p. 545. According to Explanatory Memorandum to the Recommendation: “the definition of administrative act embraces several possible actions by the public administration. It comprises individual administrative acts constituting decisions taken by the Admini­ stration in respect of specific individuals. It also covers prescriptive acts and statutory acts accompanied by general, non-personal regulations addressed to an unspecified number of persons. It further includes material actions which will have consequences in terms of the legal regulations governing natural or legal persons, on the understanding that changes to the legal situation entail creating both rights and obligations.” See: para. 57 of the Explanatory Memorandum. It should be noted that the prerequisite of judicial review of administrative acts is not laid down expressis verbis in Art. 6 of the

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determination by a tribunal of the lawfulness of an administrative act and the adoption of appropriate measures, with the exception of review by a constitutional court.79 In this document it has been explicitly stressed that “in administrative cases there is a particular risk of infringement of the principle of equality of arms by the parties’ relative positions, with one side representing the authorities and the other demanding that their rights be respected. Applicants should therefore have the full benefit of the protection provided by Article 6(1) of the echr in general in order to make good this inequality inherent in administrative proceedings.”80 Analysing the provisions of this Recommendation, it can be said that they introduce essential safeguards for aliens in expulsion procedures. Due to the fact that an expulsion procedure is generally governed by administrative proceedings, the principle of equality of arms between the parties to the proceedings should be guaranteed.81 This principle, as the ECtHR has often reiterated, requires “each party to be given a reasonable opportunity to present his case – including his evidence – under conditions that do not place him at a substantial disadvantage vis-à-vis his opponent.”82 All evidence admitted by the domestic court should, in principle, be made available to the parties with a view to adversarial argument.83 Furthermore, the Parliamentary Assembly of the Council of Europe also took note of the limited nature of the guarantees against expulsion and recommended that Member States take necessary steps to grant long-term immigrants facing expulsion the right to a judge, the right to a trial, the right to assistance by a counsel and the right to appeal with suspensive effect because of the irreversible consequences of enforcing the expulsion.84 echr as the regulation refers to civil rights and obligations as well as criminal charges against him. However, Art. 6 of the Convention is often applied in ECtHR case law to refer to cases considered to be administrative in domestic law. 79 Section A, para. 2 of the Recommendation (2004)20 of the Committee of Ministers to Member States on judicial review of administrative acts. 80 Para. 59 of the Explanatory Memorandum. 81 Para. 4b of the Recommendation (2004)20 of the Committee of Ministers to Member States on judicial review of administrative acts. 82 See: ECtHR 23 October 1996, Ankerl v. Switzerland, Application No. 17748/91, para. 38; ECtHR 18 February 1997, Nideröst-Huber v. Switzerland, Application No. 18990/91, para. 23. 83 Section B, para. 4d of the Recommendation (2004)20 of the Committee of Ministers to Member States on judicial review of administrative acts. 84 Parliamentary Assembly of the Council of Europe, Recommendation 1504(2001): Non-expulsion of long-term immigrants, 14 March 2001, para. 11j. See also: Parliamentary Assembly of the Council of Europe, Recommendation 1624(2003): Common policy on migration and asylum, 30 September 2003, para. 9.

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As far as the examination of an expulsion case is concerned, it does not necessarily require a two-stage procedure before different authorities. It does, however, require a competent authority to review the case in the light of the reasons against expulsion submitted by the alien.85 The person concerned and his representative do not have to be physically present when the case is being examined. Article 1 of Protocol No. 7 to the echr does not specify an oral hearing which means the procedure may be in written form.86 The European Convention on Human Rights also embraces regulations which apply to all aliens who were deprived of freedom due to expulsion decisions. Article 5(4) of the echr states that “everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” In the above-mentioned Al-Nashif v. Bulgaria case, the applicant raised the point that Bulgarian law did not envisage the possibility to have the deportation order judicially reviewed if it was based on national security grounds. The arrest order was submitted to the alien without stating any reasons. The ECtHR reaffirmed that any person deprived of liberty is entitled to a review of the lawfulness of his detention by a court. The requirement, the European Court emphasized, is of fundamental importance in the context of the purpose of Article 5 of the echr which is to protect against arbitrariness.87 The Court further noted that authorities using confidential material concerning national security shall not be exempt from providing effective judicial control of detentions. Al-Nashif was not granted elementary safeguards, which led to the breach of Article 5(4) of the Convention on the part of the Bulgarian authorities. The African Charter on Human and Peoples’ Rights does not explicitly prescribe the right of an alien to appeal against an expulsion decision. However, the aforementioned Article 7(1) of the achpr can be equally applicable to ensure the protection of the alien’s right. The African Commission on Human and Peoples’ Rights clarified that: In terms of Article 7.1.a anyone who feels that his or her rights have been violated is entitled to take the case before appropriate national organs, including the courts. In doing so the position or status of the victim or that of the alleged perpetrator is of no relevance. That is to say, any 85 86 87

Explanatory Report on Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ets, No. 117, para. 13.2. Ibidem, para. 14. ECtHR 20 June 2002, Al-Nashif v. Bulgaria, Application No. 50963/99, para. 92.

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person whose rights have been violated, including by persons acting in their official capacity, should have an effective remedy by a competent judicial organ, and the right to have ones cause heard is to be enjoyed without discrimination of any kind. (…) Thus, non-nationals are entitled to the enjoyment of this right just as do nationals.88 In the case of Zimbabwe Human Rights ngo Forum v. Zimbabwe, the African Commission noted that “the protection afforded by Article 7 is not limited to the protection of the rights of arrested and detained persons but encompasses the right of every individual to access the relevant judicial bodies competent to have their causes heard and be granted adequate relief.”89 Therefore, in the African Commission’s view: “it is unacceptable to deport individuals without giving them the possibility to plead their case before the competent national courts as this is contrary to the spirit and letter of the [African] Charter and international law.”90 The African Commission further indicated that: “It emerges from the case file that the victims did not have the opportunity to challenge the matter before the competent jurisdictions which should have ruled on their detention, as well as on the regularity and legality of the decision to expel them by the Angolan gover­ nment. Consequently, Article 7 paragraph 1 (a) of the Charter [has been violated].”91 The African Commission also stated in the case of Amnesty International v. Zambia, that Zambia had violated Article 7 of the African Charter on Human and Peoples’ Rights by not giving an individual the opportunity to challenge an expulsion decision: “The Zambia government by denying Mr. Chinula the opportunity to appeal his deportation order has deprived him of a right to fair hearing which contravenes all Zambian domestic laws and international human rights laws.”92

88 89 90

91 92

Kenneth Good v. Republic of Botswana, Communication No. 313/05, decision of African Commission on Human and Peoples’ Rights of 26 May 2010, paras. 162–163. Zimbabwe Human Rights ngo Forum v. Zimbabwe, Communication No. 245/02, decision of African Commission on Human and Peoples’ Rights of 15 May 2006, para. 213. Fédération internationale des ligues des droits de l’Homme v. Angola, Communication 159/96, decision of African Commission on Human and Peoples’ Rights of 11 November 1997, para. 20. Ibidem, para. 19. Amnesty International v. Zambia, Communication No. 212/98, decision of African Commission on Human and Peoples’ Rights of 5 May 1999, para. 61.

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Right to a Counsel

An alien has the right to be represented by a counsel in expulsion proceedings before a competent authority; a right he must be informed of. It can be read in Article 13 of the iccpr and Article 1 of Protocol No. 7 to the echr that an alien is granted the right only in appeal proceedings. An analogous provision may be found in Article 32(2) of the Convention Relating to the Status of Refugees, which says that “a refugee shall be allowed to appeal and to be represented for the purpose.” The analysed provisions of international conventions do not oblige States Parties to provide legal counsel. Nevertheless, the right to appoint a counsel follows from the right to be represented, which means that an alien may have himself represented by a counsel at his own cost. Since expulsion usually concerns a serious and irreversible interference with life of an individual and his basic rights, the right to be represented by a freely chosen counsel is significant. A counsel should be a person an alien trusts and believes his case will be approached with outmost care. Dishonesty may result in negative consequences that an alien will have to face. Legal assistance in expulsion proceedings may be invaluable, especially when dealing with legal issues, when it comes to submitting evidence or protecting the alien’s rights. Bearing in mind that aliens are usually unfamiliar with existing legal mechanisms, ignorant of institutions or find it difficult to speak the official language of a given State, without the assistance of a counsel they cannot satisfactorily defend themselves. Failure to appeal against an expulsion order in due time bears irreversible consequences as the alien concerned may not claim further rights in legal proceedings. The doctrine states that aliens represented by a counsel stand a greater chance of succeeding in their proceedings than those who are unrepresented.93 The Committee Against Torture emphasized that it is essential to give a person facing expulsion the possibility to contact a lawyer in order to avoid abuse of law and thereby violation of Article 3 of the cat by the body deciding on expulsion.94 In conclusion, it should be stated that States Parties should take effective measures to provide aliens with the right to a professional counsel, while 93

94

W. Haney, “Deportation and the Right to Counsel,” Harvard International Law Journal, Vol. 11, 1970, p. 184. Cases before the Human Rights Committee and European Court of Human Rights clearly point out that most aliens were represented by counsels during the appeal proceedings concerning expulsion. Josu Arkauz Arana v. France, Communication No. 63/1997, decision of 9 November 1999. See also: Recommendation No. R (81)7 of the Committee of Ministers to member states on measures facilitating access to justice, 14 May 1981.

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those who cannot afford one should be granted free legal aid throughout the proceedings. 7

Grounds for Revoking Procedural Guarantees

The discussed procedural guarantees are relative in nature. It means that they can be revoked in extraordinary situations in the interest of public order or for reasons of national security under Article 1 of Protocol No. 7 to the echr, or regarding compelling national security reasons as mentioned in Article 13 of the iccpr. To appreciate the difference between these two provisions it suffices to examine the above-mentioned criteria. Article 13 of the Covenant mentions only one exclusion clause, making the provision under Article 13 of the iccpr more favourable to aliens. It has been stated that the notion “compelling reasons” of national security is intended to highlight the narrowness of the exception.95 It should be noted that requirement of “compelling reasons” of national security “necessitates a careful balancing between individual rights and state security interests.”96 The International Court of Justice has emphasized that: “It is for the State to demonstrate that the ‘compelling reasons’ required by the Covenant existed, or at the very least could reasonably have been concluded to have existed, taking account of the circumstances which surrounded the expulsion measure.”97 In the case Ahani v. Canada the Human Rights Committee found a breach of Article 13 of the iccpr, which encompassed not only the certificate attesting the grounds for expulsion, but also “the Minister’s decision on risk of harm prior to the deportation of the petitioner to the country wherefrom he sought refuge.” The Committee did not accept that “compelling reasons of national security existed to exempt the State party from its obligation under that Article to provide the procedural protections in question, and reasoned that the individual should be afforded such protections.”98 In the same way Article 33(2) of the Convention Relating to the Status of Refugees stipulates that the aforementioned procedural guarantees do not

95 96 97 98

S. Jagerskiold, op. cit., p. 184. J.M. Henckaerts, Mass Expulsion in Modern International Law and Practice, Martinus Nijhoff Publishers, 1995, p. 37. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment of the Court of International Justice of 30 November 2010, para. 64. Ahani v. Canada, Communication No. 1051/2002, decision of 29 March 2004, para. 10.8.

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apply where “compelling reasons of national security” so require. N. Robinson clarified in the commentary to the Convention that compelling reasons “must really be of a very serious nature and the exception to sentence one cannot be applied save very sparingly and in very unusual cases.”99 The African Charter of Human and Peoples’ Rights is not so precisely worded on this point since it states in Article 12(2) that: “Every individual shall have the right to leave any country including his own, and to return to his country. This right may only be subject to restrictions, provided for by law for the protection of national security, law and order, public health or morality.” Nevertheless this provision should warrant the same conclusion. The African Commission of Human and Peoples’ Rights stressed that: “the ‘claw-back’ clauses must not be interpreted against the principles of the Charter. Recourse to these should not be used as a means of giving credence to violations of the express provisions of the Charter. Secondly, the rules of natural justice must apply. Among these are in the audi alterm partem rule, the right to be heard, the right of access to the Court. The Court in Zambia, in Banda’s case failed to examine the basis of administrative action and as such, it has not been proved that the deportees were indeed a danger to law and order. In any event the suggestion that they were ‘likely’ to be a danger was vague and not proved. It is important for the Commission to caution against a too easy resort to the limitation clauses in the African Charter. The onus is on the state to prove that it is justified to resort to the limitation clause.”100 The terms discussed above referring to possible reasons behind limiting an alien’s right to be protected against arbitrary expulsion in legal literature are traditionally considered to be some of the unclear and ambiguous wordings in law, the so-called “vague” notions.101 They have not been precisely defined in the provisions of law and, as a result, various interpretations of legal norms, concerning national security in particular, have been made. Therefore, they may become a source of abuse on the part of public administration bodies. A. Kiss notes that the “words ‘national security’ cover acts of a rather serious 99

Nehemiah Robinson, Convention Relating to the Status of Refugees. Its History, Contents and Interpretation, Institute of Jewish Affairs, World Jewish Congress, 1953 (reprinted in 1997 by the Division of International Protection of the Office of the United Nations High Commissioner for Refugees), pp. 134 and 135. 100 Amnesty International v. Zambia, Communication No. 212/98, decision of African Commission on Human and Peoples’ Rights of 5 May 1999, para. 50. 101 E. Ura, Prawne zagadnienia bezpieczeństwa państwa, Rzeszów, 1988, p. 107; See also: J. Chlebny (ed.), Prawo o cudzoziemcach. Komentarz, C.H. Beck, Warszawa 2006, p. 132.

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nature threatening directly or indirectly the Government, the integrity of independence of the country in whose territory a refugee stays.”102 The ECtHR, for example, in the aforementioned case of C.G. and Others v. Bulgaria expressed the view that domestic courts had allowed the executive to stretch the notion of national security beyond its natural meaning. The courts had not examined whether the executive body was able to demonstrate the existence of specific facts serving as a basis for its assessment that the applicant posed a national security risk, and instead based its rulings solely on uncorroborated statements by the Ministry of the Interior.103 The Inter-American Court of Human Rights laid down a key principle which is that “the gravity of the offence is not a valid criterion, even though each State has the right and the duty to guarantee its own security.”104 While recognizing that “nothing justifies terrorist violence,” the Court indicated that the State “must always exercise that right and duty within limits and according to procedures that preserve both public safety and the fundamental rights of the human person.”105 In this regard, the Inter-American Commission on Human Rights emphasized the need for proper justification of an expulsion by rejecting “vague accusations” such as “foreign undesirable” or “having violated the laws of the country.” In its Resolution 30/81, the Inter-American Commission on Human Rights stated that “the vague accusation of ‘foreign undesirable’ was made against Father Carlos Stetter without stating why, and he was accused vaguely of ‘having violated the laws of the country’, without stipulating which laws.”106 In practice, the notion of national security should be used with the utmost precision, which means that a State that refers to it needs to point to a serious, undoubted threat of a political or military nature to the entire nation (e.g. espionage, acts of terrorism).107 The reality, however, is quite different as States invoke 102 A. Kiss, “Permissible Limitations on Rights,” in L. Henkin, The International Bill of Rights. The Covenant on Civil and Political Rights, Columbia University Press, New York, 1981, p. 290. 103 ECtHR 24 April 2008, C.G. and others v. Bulgaria, Application No. 1365/07, para. 43. See also: ECtHR 11 February 2010, Raza v. Bulgaria, Application No. 31465/08, paras. 53–54. 104 A. Ubeda de Torres, “The right to Due Process,” in L. Burgorgue-Larsen, A. Ubeda de Torres, R. Greenstein, The Inter-American Court of Human Rights: Case-Law and Commentary, Oxford University Press; 1 edition 2011, p. 651. 105 Inter-American Court of Human Rights, Loayza-Tamayo v. Peru, Series C, No. 31, Judgment of 17 September 1997, para. 61. 106 Inter-American Commission on Human Rights Resolution 30/81, Padre Carlos Stetter, 73/78 Guatemala, 25 June 1981, Annual Report of the Inter-American Commission on Human Rights 1980–1981. 107 M. Nowak, u.n. Covenant…, op. cit., p. 300. This refers mostly to spies, foreign agents and terrorists.

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this limitation clause in various situations, often abusing it when expelling “undesirable” aliens. To prevent this, in order to assess whether reasons of national security or public order stop aliens from residing in a territory of a State, an accurate interpretation is required in accordance with the purpose of Article 13 of the iccpr, Article 33(2) of the Convention Relating to the Status of Refugees, Article 1 of Protocol No. 7 to the echr, Article 22(6) of the achr and Article 12(4) of the achpr, which is to protect a lawful alien against arbitrary expulsion. Under Article 1(2) of Protocol No. 7 to the echr, a lawful alien may be expelled before the exercise of his rights under the provisions of this Article when such expulsion is necessary in the interests of public order or is grounded in reasons of national security. However, even in circumstances where there are reasons expressed in paragraph 2 of the discussed provision, an expulsion decision must be taken in accordance with law. Hence, it should be emphasized that an alien being expelled on grounds of Article 1(2) may thus invoke procedural guarantees enshrined in Article 1(1) only after his expulsion from the territory of a State.108 An alien, in turn, expelled on grounds other than those under Article 1(2) is entitled to invoke such guarantees before his possible deportation. The Explanatory Report on Protocol No. 7 makes it clear that to consider an expulsion necessary in the interest of public order or for reasons of national security, the principle of proportionality as defined in the case law of the ECtHR must be taken into consideration.109 What is more, the Explanatory Report specifies that if a given State invokes the public order clause, it should prove the alien’s expulsion necessary in this particular case. If an expulsion is to be exercised for reasons of national security, the justification is sufficient in itself.110 Without a doubt, to assess whether compelling reasons of public order or national security prevent an alien from residing in the territory of a State, it is necessary to explain individual circumstances concerning his behaviour. For instance, J. Chlebny rightly notes that a criminal record as such is not enough to consider anyone’s stay to be a possible threat.111 108 Explanatory Report on Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ets, No. 117, para. 15. See also: ECtHR 8 June 2006, Lupsa v. Romania, Application No. 10337/04, para. 53; I. Cameron, National Security and the European Convention on Human Rights, Uppsala 2000, p. 431. 109 Explanatory Report on Protocol No. 7 to the Convention for the Protection of Human Rights and Fundamental Freedoms, ets, No. 117, para. 15. 110 Ibidem, para. 15. So far ECtHR examined applications concerning violation of Art. 1 of the Protocol No. 7 only in cases of aliens’ expulsion based on reasons of national security. 111 J. Chlebny, Ochrona interesu…, op. cit., p. 18.

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Despite the fact that international law has a tendency to fully limit the arbitrariness of States, public order and national security considerations allow States a very wide degree of latitude.112 States Parties to international treaties have discretionary authority to expel a lawful alien or not. It must be remembered, however, that such authority needs to be exercised in such a manner that the alien’s rights awarded by the iccpr, echr, achr and achpr are not violated. 8

Right to an Effective Remedy

Aliens must have access to a practical and effective remedy against an expulsion decision. In this context, both the iccpr and the echr acknowledge that procedural guarantees need to be fulfilled so that individual cases are effectively and promptly dealt with. For this purpose, detailed procedural requirements have been developed by the Human Rights Committee and by the ECtHR. The right to an effective remedy in the iccpr was enshrined in Article 2(3) (a). In the light of the provision, a State Party is obliged to provide every individual whose rights or freedoms afforded in the Covenant are violated with an effective legal remedy, even if the violation was committed by persons acting in an official capacity. For that reason, a State shall ensure, as set forth in Article 2(3)(b) that “any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy.” Thereby, the authors of the Covenant put special emphasis on the possibility of appeal before a competent and impartial court.113 It is clear that domestic law should provide avenues for remedies. An effective remedy, as set forth in Article 2(3)(a) of the iccpr, should be accessible to an alien whose rights (freedoms) – afforded in the Covenant – were violated and it should be applied in a predictable way. In expulsion cases, aliens mostly invoke, as in the echr, the violation of Article 2(3) with reference to Articles 6, 7 of the Covenant (non-refoulement principle). In Judge v. Canada, the Human Rights Committee held that “by preventing the author from exercising an appeal available to him under domestic law, the State party failed to 112 Alzery v. Sweden, Communication No. 1416/2005, decision of 25 October 2006, para. 11.10. See also: D.A. Martin, op. cit., p. 39. 113 P. Boeles, Fair Immigration…, op. cit., p. 109.

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demonstrate that the author’s contention that his deportation to a country where he faces execution would violate his right to life, was sufficiently considered. The State party makes available an appellate system designed to safeguard any petitioner’s, including the author’s, rights.”114 Therefore, the Committee stated that the expulsion order to a country where the alien was facing capital punishment and depriving him of available remedies at the same time was taken arbitrarily and thus violated Article 6 of the Covenant together with Article 2(3) of the iccpr.115 An example of a breach of Article 7 in conjunction with Article 2(3) of the iccpr is the already discussed Alzery v. Sweden case, where the author of the communication had no de facto time to turn to any national or international body to challenge the execution of the expulsion, since Swedish authorities expelled him a few hours after the decision was taken.116 The Committee emphasized that according to the non-refoulement principle, an individual must have an opportunity for effective review of a decision to expel prior to its execution, in order to avoid irreparable harm.117 Violation of these provisions was caused by the lack of an effective remedy against the expulsion order. It is worth noting that in cases where the non-refoulement principle is applicable, the effective remedy shall result in suspending the execution of the expulsion.118 When interpreting the notion of an effective remedy, the Human Rights Committee raised the question as to whether the right to an effective remedy against violation of the provisions of the Covenant is available only after the violation has been committed (so-called repressive remedy) or whether it encompasses the right to preventive measure ex ante (so-called preventive remedy).119 M. Balcerzak states, however, that the Committee initially held that when any provision afforded by the Covenant is violated, an individual is entitled to remedy which is prescribed by the iccpr. In other words, the Covenant does not assume preventive protection, limiting itself to effective means of redress ex post facto.120 With time, such an approach by the Committee has changed since, as R. Wieruszewski says, legal measures should 114 Judge v. Canada, Communication No. 829/1998, decision of 5 August 2003, para. 10.9. 115 Ibidem. 116 Alzery v. Sweden, Communication No. 1416/2005, decision of 25 October 2005, para. 3.10. 117 Ibidem, para. 11.8. 118 K. Wouters, International Legal Standards…, op. cit., p. 413. 119 M. Nowak, u.n. Covenant…, op. cit., p. 67. See also: M. Balcerzak, “Konstrukcja prawa do skutecznego środka odwoławczego (right to an effective remedy) w uniwersalnym i regionalnych systemach ochrony praw człowieka,” in J. Białocerkiewicz, M. Balcerzak (ed.), Księga Pamiątkowa Profesora Tadeusza Jasudowicza, Toruń, 2004, p. 43. 120 M. Balcerzak, Konstrukcja…, op. cit., p. 43.

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be made available even if the applicant’s rights have not yet been infringed.121 M. Balcerzak, moreover, notes that there were certain discrepancies in the Committee practice as to the scope of the discussed provision.122 It must, however, be emphasized that Article 2(3)(a) is of an accessory nature, meaning it is applied together with other provisions of the Covenant. As far as the relation of Article 13 of the iccpr to Article 2(3)(a) is concerned, it has so far been defined neither in the doctrine nor in hrc case law. Article 13 of the Covenant grants aliens a legal measure to ensure verification of the lawfulness of the expulsion decision. The provision, therefore, gives a minimum guarantee which is to have the expulsion order issued by the relevant authority reviewed in administrative proceedings. What makes the provision different from those with a broader legal protection of an individual, Z. Kędzia claims, is a deliberate action to provide the State – of the alien’s residence – with the broadest possible protection of its own interests.123 When looking into ECtHR judicature so far, a conclusion may be drawn that Article 1 of Protocol No. 7 to the echr has in practice not played any important role.124 Three main reasons need to be highlighted here. First, procedural guarantees that an alien is entitled to in expulsion proceedings remain beyond the scope of the right to a fair trial under Article 6 of the echr. Secondly, some countries are still unwilling to ratify Protocol No. 7. Last, but not least, Article 13 of the echr tries to close a loophole concerning procedural protection against expulsion and formulates the right to an effective remedy.125 It reads: “everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.” The ECtHR has explained on many occasions that lawful aliens facing expulsion may benefit not only from Article 1 of Protocol No. 7 but also from the protection guaranteed by Articles 3, 8 and 13 of the echr. Procedural 121 R. Wieruszewski (ed.), Międzynarodowy Pakt Praw Obywatelskich (Osobistych) i politycznych. Komentarz, Warszawa 2012. 122 M. Balcerzak, Konstrukcja…, op. cit., p. 43. 123 Z. Kędzia, Prawo cudzoziemca do ochrony…, op. cit., pp. 494–495. 124 Violation of Art. 1 of Protocol No. 7 to the echr was declared, inter alia, in the following cases: ECtHR 8 June 2006 Lupsa v. Romania, Application No. 10337/04; ECtHR 5 October 2006, Bolat v. Russia, Application No. 14139/03; ECtHR 24 April 2008, C.G. and others v. Bulgaria, Application No. 1365/07; ECtHR 12 February 2009, Nolan and K.v. Russia, Application No. 2512/04. 125 H. Lambert, The position of aliens…, op. cit., p. 36; P. Boeles, M. den Heijer, G. Lodder, K. Wouters, op. cit., p. 381.

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guarantees and remedies enshrined in the above-mentioned Articles correspond, to some extent, to the protection afforded in Article 1 of Protocol No. 7 and go some way to making up for the fact that Article 6 of the echr does not provide safeguards regarding “entry, stay and expulsion” of aliens. Therefore, a violation of Article 1 of Protocol No. 7 appears subsidiary or complementary in relation to violation of the above-mentioned provisions of the Convention.126 Article 13 of the echr grants an effective protection of rights and freedoms afforded by the Convention at national level. According to the Court, it “gives direct expression to the States’ obligation to protect human rights first and foremost within their own legal system.”127 The object of the provision is “to provide a means whereby individuals can obtain relief at national level for violations of their Convention rights before having to set in motion the international machinery of complaint before the Court.”128 Moreover, Article 13 of the echr, it has to be said, cannot be applied independently, but only in relation to rights and freedoms guaranteed in the Convention or its additional protocols. Its accessory nature consists in its application only when an individual has suffered from violation of rights or freedoms which can be challenged under the echr. In other words, to mention that Article 13 was violated one must prove that other substantive provisions of the Convention were violated as well.129 According to the Court, the provision “must be interpreted as guaranteeing an effective remedy before a national authority to everyone who claims that his rights and freedoms under the Convention have been violated.”130 An alien, therefore, may claim violation of the right to an effective remedy in his appeal against an expulsion order only when such decision, in their view, infringes his rights under the Convention, Article 3 or Article 8 of the echr in particular.131 The Court case law indicates that Article 13 of the Convention requires an effective remedy in domestic law:

126 A. Wróbel, Protokół nr 7 do Konwencji…, op. cit., p. 621; P. Boeles, Fair Immigration…, op. cit., p. 224. 127 ECtHR 26 October 2000, Kudła v. Poland, Application No. 30210/96, para. 152. 128 Ibidem. 129 P. Hofmański, A. Wróbel, Prawo do skutecznego środka odwoławczego, in Konwencja o Ochronie Praw Człowieka i Podstawowych Wolności. Tom I. Komentarz do art. 1–18, C.H. Beck, Warszawa 2010, p. 725. 130 ECtHR 6 September 1978, Klass and others v. Germany, Application No. 5029/71, para. 64. 131 A. Wróbel, Protokół nr 7 do Konwencji…, op. cit., p. 625. See also: A. Szklanna, op. cit., p. 200; H. Lambert, The position of aliens…, op. cit., p. 36.

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• when an individual has an arguable claim to be the victim of a violation of the rights set forth in the Convention; • the authority referred to in Article 13 may not necessarily be a judicial authority but, if it is not, its powers and guarantees it affords are relevant in determining whether the remedy before it is effective; • through different remedies or, if appropriate, to obtain redress.132 Article 13 of the echr, therefore, grants the availability of an effective remedy at national level to protect – i.e. to enforce the essence of the Convention rights and freedoms in whatever form they might be secured in the domestic legal order.133 An alien who asserts his rights and freedoms – set forth in the Convention – should be granted a legal measure that guarantees that the case is viewed by a national authority or granted appropriate relief. It means, as P. Hofmański and A. Wróbel put it, that the term “remedy” should be broadly understood as any “legal measure, which enables to examine a case. Such measure can take different forms such as: claim, adequate remedies, right to appeal or annulment, and any other compensatory damages or restitution claims.”134 The Court gave up the abstract definition of the notion of arguability and stated that “it must be rather determined, in the light of the particular facts and the nature of the legal issue or issues raised, whether each individual claim of violation forming the basis of a complaint under Article 13 was arguable and, if so, whether the requirements of Article 13 were met in relation thereto.”135 As a result, the Court specifies the notion of “arguable claim” in the 132 ECtHR 25 March 1983, Silver and others v. The United Kingdom, Application No. 5947/72; 6205/73; 7052/75; 7061/75; 7107/75; 7113/75; 7136/75, para. 113; See also: ECtHR 6 September 1978, Klass and others v. Germany, Application No. 5029/71, para. 67; ECtHR 26 March 1987, Leander v. Sweden, Application No. 9248/81, para. 77, 84; A.R. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, Oxford-Portland-Oregon, 2004, pp. 206–207. 133 ECtHR 4 May 2000, Rotaru v. Romania, Application No. 28341/95, para. 67. It should be noted that Contracting States are granted certain discretion regarding the manner in which they provide the remedy required by Art. 13 and comply with their Convention obligations under this provision, Kudła v. Poland, para. 154. In the previous Smith and Grady v. The United Kingdom case, the Court decided that Contracting States should be afforded a margin of appreciation in conforming with their obligations under this provision, ECtHR 27 September 1999, Application Nos. 33985/96 and 33986/96, para. 135. 134 P. Hofmański, A. Wróbel, op. cit., p. 728. The authors moreover emphasize that the term “remedy” is broad enough for the Court to use another term, “relief,” to refer generally to reparation for the violation of rights and freedoms afforded in the Convention. 135 ECtHR 27 April 1988, Boyle and Rice v. The United Kingdom, Application No. 9659/82, 9658/82, para. 55.

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light of particular circumstances. Therefore, the better the reasoning, the greater the probability that it will meet the criteria of “arguable claim.” It is worth noting that in many cases, where aliens claimed violation of Article 3 of the Convention together with Article 13, the Court dismissed the complaint of violation of the latter, if it declared the complaint of violation of the former was ill-founded. Such a situation can be observed in Conka v. Belgium, in which the Court saw no breach of Article 13, taken together with Article 3 of the Convention, but admitted violation of the first regulation in conjunction with Article 4 of Protocol No. 4 to the echr.136 The Court considers that the remedy required by Article 13 of the echr must be “effective” in practice as well as in law.137 The effectiveness of the remedy means that it may “either prevent the alleged violation or its continuation, or prove adequate redress for any violation that had already occurred.”138 In Strasburg case law it has been stated that national remedy is effective when it is: • adequate: the nature of the complaint must be examined by an adequate national authority; • effective: a compensation must be granted to redress the violation.139 According to the Court’s view, for the purpose of Article 13, the very essence of a “remedy” is to be understood as available to an alien.140 However, the effectiveness of the remedy under Article 13 of echr does not depend on the certainty of a favourable outcome for the applicant.141 In the above-mentioned Chahal v. The United Kingdom case, the Court stated that the remedy the applicant was afforded to claim violation of Article 3 of the echr was not adequate, as its application was limited.142 The alien applied for political asylum maintaining that upon deportation to India he 136 ECtHR 5 February 2002, Conka v. Belgium, Application No. 51564/99, paras. 81–83. 137 ECtHR 26 October 2000, Kudła v. Poland, Application No. 30210/96, para. 157. 138 Ibidem, para. 158. See also: ECtHR 11 January 2007, Musa and Others v. Bulgaria, Application No. 61259/00, paras. 61–63. 139 P. Hofmański, A. Wróbel, op. cit., p. 727. 140 ECtHR 10 January 2012, G.R. v. The Netherlands, Application No. 22251/07, paras. 46–50. See also: ECtHR 21 January 2011, M.S.S. v. Belgium, Application No. 30696/09, para. 318. 141 P. Boeles, Fair Immigration…, op. cit., p. 272; See also: ECtHR 30 October 1991, Vilvarajah and Others v. The United Kingdom, Application Nos. 13163/87, 13164/87, 13165/87, 13447/87, 13448/87, para. 122; ECtHR 20 June 2002, Al-Nashif v. Bulgaria, Application No. 50963/99, para. 132. 142 ECtHR 15 November 1996, Chahal v. The United Kingdom, Application No. 22414/93.

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would be subjected to torture. Since the request was refused, the applicant intended to appeal against deportation before the court. The court in that case, however, did not decide on the essence of the expulsion order, but limited itself to procedural aspects. The Secretary of State invoked national security considerations as grounds for its decision to deport the applicant which left the judges with no instrument to question it, to scrutinize the full material on which the decision was made, in particular. The Court, therefore, held that the remedy the applicant was granted under British law, did not meet the requirements under Article 13 of the echr (breach of Article 13 in conjunction with Article 3 of the Convention). According to the Court, it was unacceptable not to have a complaint, considering the real risk of inhuman treatment the applicant would be exposed to upon deportation, examined because of national security grounds.143 In another above-mentioned case, Al-Nashif v. Bulgaria, the Court held that Article 13 in conjunction with Article 8 of the Convention require that States must allow the individual concerned to effectively challenge the deportation or refusal of residence permit and have the relevant issues examined by an appropriate authority offering adequate guarantees of independence and impartiality.144 The Bulgarian Court dismissed the applicant’s complaint invoking the Aliens Act according to which the Ministry of the Interior is authorized to issue a deportation order without adversarial proceedings, justification or the possibility to appeal. It should be noted that the applicant could not rely on procedural guarantees enshrined in Article 1 of the Protocol No. 7, as it was not binding for Bulgaria at that time. The ECtHR held that in cases concerning expulsion of aliens on grounds of national security, the guarantee of an effective remedy requires at least that a competent independent appeal authority must be informed of the reasons behind the deportation decision, even if such reasons are not publicly available. In that case, an alien was not granted such remedy and therefore there was violation of Article 13 of the Convention. Remedies against a deportation order under Article 8 of the Convention in national law met with the Court’s criticism in other cases as well. In C.G. and others v. Bulgaria, the ECtHR stated that the domestic courts which dealt with the decision to expel the applicant did not properly examine whether it had been made on real national security grounds and did not verify the executive body’s assurances that the alien presented a risk in that regard.145 The applicant was not given any information concerning the facts which resulted in 143 Ibidem, paras. 150–151. 144 ECtHR 20 June 2000, Al-Nashif v. Bulgaria, Application No. 50963/99, para. 133. 145 ECtHR 24 April 2008, C.G. and others v. Bulgaria, Application No. 1365/07, para. 60.

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such assessment, nor was he granted an opportunity to challenge them. Moreover, the ECtHR observed that the national courts failed to consider whether the deportation order was proportionate to the aim sought – national security.146 The Court decided that in that case, the applicant was not granted an effective remedy as afforded by Article 13 of the Convention, because “the judicial review proceedings did not amount to an avenue whereby the applicants could adequately vindicate their right to respect for their family.”147 When facing expulsion, the remedy under Article 13 of the echr is effective as long as it allows suspension of the deportation order of an alien.148 The Parliamentary Assembly of the Council of Europe recommended that aliens expelled from the territory of a Member State of the Council of Europe be entitled to a suspensive appeal which should be considered within three months from the date of the expulsion decision.149 If an alien faces torture or inhuman treatment in a country to which he is to be deported, the provision under Article 13 of the Convention requires that the person concerned has access to a remedy with automatic suspensive effect.150 Otherwise, legal protection under echr (Article 3 for example) would be purposeless as it would follow the execution of the deportation order.151 What is more, the Council of Europe Commissioner for Human Rights when issuing certain recommendations to Member States indicates “that it is essential that the right of judicial remedy within the meaning of Article 13 of the echr be not only guaranteed in law but also granted in practice when a person alleges that the competent authorities have contravened or are likely to contravene a right guaranteed by the echr. The right of effective remedy 146 Ibidem, para. 61. 147 Ibidem, para. 63. 148 H. Lambert emphasizes that in the context of alien’s appeal against deportation, it must have a suspensive effect, H. Lambert, The position of aliens…, op. cit., p. 38. 149 Parliamentary Assembly of the Council of Europe, recommendation 1624 (2003): Common policy on migration and asylum, 30 September 2003, para. 9: “With regard to expulsion: […] ii. any decision to expel a foreigner from the territory of a Council of Europe member state should be subject to a right of suspensive appeal; iii. if an appeal against expulsion is lodged, the appeal procedure shall be completed within three months of the original decision to expel.” See also: Recommendation No. R (1998) 13 of 18 September 1998 of the Committee of Ministers of the Council of Europe to Member States on the Right of Rejected Asylum Seekers to an Effective Remedy against Decisions on Expulsion in the context of Art. 13 of the European Convention on Human Rights. 150 ECtHR 26 April 2007, Gebremedhin v. France, Application No. 25389/05, para. 66. 151 A. Szklanna, op. cit., p. 203.

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must be guaranteed to anyone wishing to challenge a refoulement or expulsion order.”152 It should be stressed that the recent case law clearly requires automatic suspensive effect of any appeal if there is a risk of violation of Article 3 echr. In contrast, it is not necessary for a remedy to be effective to have automatic suspensive effect in cases where expulsion is questioned on the basis of supposed interference with private and family life.153 The judgment of 12 December 2012 in De Souza Ribeiro v. France154 can serve as an example to illustrate this approach. It concerns a Brazilian national, who had resided in French Guiana with his family since the age of seven. Following his administrative detention for failing to show a valid residence permit, the authorities ordered his removal. He was deported less than an hour after applying to the domestic court of first instance. The Grand Chamber of the ECtHR considered that the haste with which the removal order was executed had the effect of rendering the available remedies ineffective in practice and therefore inaccessible.155 The ECtHR stated that the applicant had no chance of having the lawfulness of the removal order examined thoroughly enough by a national authority offering the 152 Recommendation of the Council of Europe Commissioner for Human Rights concerning the rights of aliens wishing to enter a Council of Europe member State and the enforcement of expulsion orders, CommDH/Rec(2001)1, 19 September 2001, para. 11. The Committee recalled also that suspensive effect in Twenty guidelines of the Committee of Ministers of the Council of Europe, 2005. 153 ECtHR 26 July 2011, M. and Others v. Bulgaria, Application No. 41416/08, paras. 122–132. 154 ECtHR 13 December 2012, De Souza Ribeiro v. France, Application No. 22689/07. See paras. 82–83 of the judgment: “Where a complaint concerns allegations that the person’s expulsion would expose him to a real risk of suffering treatment contrary to Article 3 of the Convention, in view of the importance the Court attaches to that provision and given the irreversible nature of the harm that might occur if the risk of torture or ill-treatment alleged materialized, the effectiveness of the remedy for the purposes of Article 13 requires imperatively that the complaint be subject to close scrutiny by a national authority (…), independent and rigorous scrutiny of a claim that there exist substantial grounds for fearing a real risk of treatment contrary to Article 3 (…) and reasonable promptness (…). In such a case, effectiveness also requires that the person concerned should have access to a remedy with automatic suspensive effect (…). The same principles apply when expulsion exposes the applicant to a real risk of a violation of his right to life safeguarded by Article 2 of the Convention. Lastly, the requirement that a remedy should have automatic suspensive effect has been confirmed for complaints under Article 4 of Protocol No. 4 (…). By contrast, where expulsions are challenged on the basis of alleged interference with private and family life, it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect.” 155 Ibidem, para. 95.

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requisite procedural guarantees. In the view of the Court, Article 13 did not permit States to deny applicants access, in practice, to the minimum procedural safeguards needed to protect them against arbitrary expulsion.156 Moreover, it explicitly affirmed that “in immigration matters, where there is an arguable claim that expulsion threatens to interfere with the alien’s right to respect for his private and family life, Article 13 in conjunction with Article 8 of the Convention requires that States make available to the individual concerned the effective possibility of challenging the deportation or refusal-of-residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality.”157 The Court found that in practice the applicant had not had access to effective remedies under Article 8 of the Convention and therefore held a violation of Article 13 in conjunction with Article 8.158 Hence, Article 13 of the echr must be regarded as one of key regulations that grant an alien procedural protection against arbitrary expulsion, although it only applies if the applicant simultaneously suffers a violation of his rights and freedoms afforded in the Convention. The scope of the application of substantive provisions (e.g. Articles 3 and 8 of the Convention) and Article 13 of the Convention concerning aliens is much broader than the scope of procedural guarantees under Article 1 of the Protocol No. 7 only. The right to an effective remedy has also been recognized, in terms which are similar to those of Article 13 of the echr, by the American Human Rights Convention. According to Article 25 of the achr: 1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the State concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties. 2. The States Parties undertake: a. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the State; b. to develop the possibilities of judicial remedy; and c. to ensure that the competent authorities shall enforce such remedies when granted.

156 Ibidem, para. 97. 157 Ibidem, para. 83. 158 ECtHR 13 December 2012, De Souza Ribeiro v. France, Application No. 22689/07, para. 100.

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It is clear from the wording of this provision that the remedy is strictly judicial and autonomous.159 This article also establishes in broad terms the obligation of States to provide to all persons within their jurisdiction an effective judicial remedy to violations of their fundamental rights. The basic difference between Article 13 of the echr and Article 25(1) of the achr is that the former only guarantees the right to an effective remedy with respect to rights or freedoms protected under the European Convention. In turn, Article 25(1) of the achr gives everyone the right to recourse “for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention.” The Inter-American Court of Human Rights stated that: “According to American Convention, the States Parties are obliged to provide effective judicial recourses to the victims of human rights violations (Article 25), and that this recourse must be provided in conformity with due process of law (Article 8(1)). Both of these obligations fall within the general State obligation to guarantee the free and full exercise of the rights recognized by the Convention to all those within their jurisdiction.”160 Further, in its view “for a remedy to be effective it had to be capable of producing the result for which it was designated.”161 The Court, moreover, specified that: for such an [effective] remedy to exist, it is not sufficient that it be provided for by the Constitution or by law or that it be formally recognized, but rather it must be truly effective in establishing whether there has been a violation of human rights and in providing redress. A remedy which proves illusory because of the general conditions prevailing in the country, or even in the particular circumstances of a given case, cannot be considered effective. That could be the case, for example, when practice has shown its ineffectiveness: when the Judicial Power lacks the necessary independence to render impartial decisions or the means to carry out its judgments; or in any other situation that constitutes a denial of justice, as when there is an unjustified delay in the

159 L. Burgorgue-Larsen, “The right to an effective remedy,” in L. Burgorgue-Larsen, A. Ubeda de Torres, R. Greenstein, The Inter-American Court of Human Rights: Case-Law and Commentary, Oxford University Press; 1 edition 2011, p. 678. 160 Inter-American Court of Human Rights, Velasquez Rodriguez v. Honduras, Judgment of 26 June 1986, Preliminary Objections, Series C, No. 1, para. 91. 161 Inter-American Court of Human Rights, Velasquez Rodriguez v. Honduras, Judgment of 29 July 1988, Series C, No. 4, para. 66.

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decision; or when, for any reason, the alleged victim is denied access to a judicial remedy.162 In other words, the nonexistence of an effective judicial remedy against violation of the alien’s right to be protected against arbitrary expulsion that is recognized under the American Convention constitutes a violation of that Convention by the State Party. 9

Procedural Guarantees for eu Citizens in the Light of Directive 2004/38/EC

This subchapter briefly presents the procedural guarantees against arbitrary expulsion eu citizens are entitled to under Directive 2004/38/EC and selective case law of the Court of Justice of the European Union. The general rule is that an eu citizen who is the subject of a measure restricting his freedom of movement and of residence on public policy, public security or public health grounds should be informed, precisely and fully, of the grounds for such a measure.163 By way of exception, only interests of State security can preclude him from being informed. The Court of Justice of the European Union has recognized that “Community law precludes the deportation of a national of a Member State based on reasons of a general preventive nature, that is one which has been ordered for the purpose of deterring other aliens, in particular where such measure automatically follows a criminal conviction, without any account being taken of the personal conduct of the offender or of the danger which that person represents for the requirements of public policy.”164 The domestic courts have to take account of facts which occurred after the final expulsion decision has been made, since the evidence may point to cessation or substantial diminution of the threat the person concerned poses to public policy.165 There appears a question as to what extent Member States under Article 30(2) of Directive 2004/38/EC can derogate from the right to inform an eu 162 Inter-American Court of Human Rights (Arts. 27(2), 25 and 8 of the American Convention on Human Rights), Advisory Opinion OC-9/87 of October 6, 1987, Judicial Guarantees in States of Emergency, Series A., No. 9, para. 24. 163 See: Art. 30(2) of Directive 2004/38/EC. 164 Georgios Orfanopoulos and Others and Raffaele Oliveri v. Land Baden-Württemberg, Case No. C-482/01 and C-493/01, Judgment of 29 April 2004 of the Court of Justice of the eu, para. 68. 165 Ibidem, para. 82.

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citizen, precisely and fully, of the grounds for an expulsion decision without unduly affecting the procedural rights he may rely on. Without a doubt, the obligation to present reasons is closely linked to the principle of respect for the rights of the defence and the guarantee of effective judicial protection. The purpose of the aforementioned obligation is to enable those concerned to ascertain the reasons for the measure so that they can assess whether it is wellfounded, and to enable the competent court to exercise its power of review.166 An alien must be informed of the evidence adduced against him to justify the measure adversely affecting him and afforded the opportunity to effectively make known his view on that evidence.167 Despite the fact that Article 346(1)(a) of tfeu stipulates that “no Member State shall be obliged to supply information the disclosure of which it considers contrary to the essential interests of its security,” it does not rule out the application of eu law, and its fundamental rights in particular. The Court of Justice of the eu stressed that although this “article refers to measures which a Member State may consider necessary for the protection of the essential interests of its security or of information the disclosure of which it considers contrary to those interests, [this] article cannot, however, be read in such a way as to confer on Member States a power to deport from the provisions of the tfeu based on no more than reliance on those interests.”168 Consequently, it is for the Member State which seeks to take advantage of Article 346 tfeu to prove that it is necessary to have recourse to that derogation in order to protect its essential security interests. The opinion of Y. Bot, Advocate General, concerning the Case No. C-300/11 is worth mentioning here.169 He took the view that if a: Member State wishes to invoke interests of State security to prevent the grounds of public security justifying the expulsion of an eu citizen being disclosed to him, it must prove to the national court hearing an appeal against an expulsion decision that it is necessary to have recourse to the derogation provided for in Article 30(2) of Directive 2004/38. That State 166 Judgment of 29 June 2010 of the Court of Justice of the eu, No. C-550/09, para. 54. 167 See: Fulmen and Fereydoun Mahmoudian v. Council of the European Union, Case No. T-439/10 and T-440/10, Judgment of 21 March 2012 of the Court of Justice of the eu, para. 72. 168 European Commission v. Finland, Case No. C-284/05, Judgment of 15 December 2009 of the Court of Justice of the eu, para. 23. 169 Opinion of the Advocate General, Y. Bota, delivered on 12 September 2012 concerning Case No. C-300/11, ZZ v. Secretary of State for the Home Department.

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must thus provide proof that legitimate security concerns about the nature and sources of intelligence information taken into account in the adoption of the decision concerned militate in favour of a restriction or non-disclosure of the grounds. In the absence of such proof, the national court must always uphold the principle that the eu citizen must be informed, precisely and in full, of the grounds justifying his expulsion.170 What is more, in its assessment of the merits of the decision taken by a competent national authority not to disclose, precisely and fully, the grounds for an expulsion measure, the national court must bear in mind that the derogation provided for in Article 30(2) of Directive 2004/38 “must be interpreted strictly, but without depriving it of its effectiveness.”171 The grounds of public security justifying an alien’s expulsion should be forwarded to him in compliance with the duty to protect national security. Thereby, an eu citizen can either be precisely and fully informed, not informed if State security so requires, or given a summary of expulsion grounds. As. Y. Bot noted “to be consistent with Article 47 of the Charter,172 the infringement of the [alien’s] right of the defense and effective judicial protection caused by the application of the derogation under Article 30(2) of Directive 2004/38 must be counterbalanced by appropriate procedural mechanisms capable of guaranteeing a satisfactory degree of fairness in the procedure. It is only on this condition that the infringement of the Union citizen’s procedural rights could be regarded as proportionate to the objective for a Member State to protect the essential interests of its security.”173 It is, therefore, for Member States to establish such procedural mechanisms in accordance with the principle of procedural autonomy, since Directive 2004/38/EC does not provide for any. 170 Ibidem, para. 74. 171 ZZ v. Secretary of State for the Home Department, Case No. C-300/11, Judgment of 4 June 2013 of the Court of Justice of the eu, para. 49. 172 Art. 47 of the Charter of Fundamental Rights of the European Union states: “Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented. Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.” 173 Opinion of the Advocate General, Y. Bota, delivered on 12 September 2012 concerning Case No. C-300/11, ZZ v. Secretary of State for the Home Department, para. 83.

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Similarly the Court of Justice of the eu expressed its view, recognizing that: “Articles 30(2) and 31 of Directive 2004/38, read in the light of Article 47 of the Charter, must be interpreted as requiring the national court with jurisdiction to ensure that failure by the competent national authority to disclose to the person concerned, precisely and in full, the grounds on which a decision taken under Article 27 of that directive is based and to disclose the related evidence to him is limited to that which is strictly necessary, and that he is informed, in any event, of the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence.”174 Hence, it should be explicitly highlighted that whenever a Member State invokes the derogation provided for in Article 30(2) of Directive 2004/38/EC, it must be decided whether a fair balance has been guaranteed between the eu citizen’s right to effective judicial protection and the grounds of State security. According to Article 31(1) of Directive 2004/38/EC, an eu citizen has the right to appeal against the expulsion decision. However, there is no indication that judicial review of such decision is required. It does not require the appeal to have a suspensive effect unless the expulsion decision is accompanied by an application for an interim order to suspend enforcement of that decision.175 In such circumstances, actual removal from the territory of the Member State may not take place until the decision on the interim order has been taken, except: “where the expulsion decision is based on a previous judicial decision; where the persons concerned have had previous access to judicial review; or where the expulsion decision is based on imperative grounds of public security under Article 28(3) of Directive.”176 Member States are obliged not only to provide an individual with the possibility of taking legal action before an expulsion decision is executed, but also to let such a person apply to competent court.177 The Court of Justice of the eu expressed the view that Member States must take all steps to ensure that safeguard of the right of appeal is in fact available to anyone against whom an expulsion measure has been adopted. Otherwise, according to the Court “this guarantee would become illusory if the Member States could, by the immediate execution of a decision ordering expulsion, deprive the person concerned of the opportunity of effectively making use of the remedies which he is guaranteed.”178 174 ZZ v. Secretary of State for the Home Department, Case No. C-300/11, Judgment of 4 June 2013 of the Court of Justice of the eu, para. 69. 175 Art. 31(2) of Directive 2004/38/EC. 176 Ibidem. 177 Item 26 of Directive 2004/38/EC. 178 Jean Noël Royer, Case No. C-48/75, Judgment of 8 April 1976 of the Court of Justice of the European Communities, paras. 55 and 56.

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Moreover, the provisions of the Directive 2004/38/EC prescribe that the review procedure shall allow for an examination of the legality of the expulsion decision, as well as of the facts and circumstances on which the proposed measure is based. They shall ensure that the expulsion decision is not disproportionate, particularly in view of the requirements laid down in Article 28. However, Member States may exclude the eu citizen from their territory pending the review procedure, but they may not prevent the individual from submitting his defence in person, except when his appearance may cause serious trouble to public policy or public security or when the appeal or judicial review concerns a denial of entry to the territory.179 10

Diplomatic Protection

Arbitrary expulsion of aliens has always been a breeding ground for diplomatic intervention of a State in order to protect its citizens. E.M. Borchard in his great work The Diplomatic Protection of Citizens Abroad of 1915 wrote that “arbitrary expulsions either without any or giving insufficient cause, or in violation of the municipal law or a treaty, or under harsh circumstances unnecessarily hurtful to the person affected gave rise to diplomatic claims and to awards by arbitral commissions.”180 In turn, R. Jennings and A. Watts claim that: “the need for the expelling state not to act arbitrarily in the case of expulsion of an alien who has been residing in the expelling state for some length of time, and has established his means of livelihood there, justifies the home state of the expelled individual, by virtue of its rights of protection over national abroad, in making diplomatic representations to the expelling state, and asking for the reasons for the expulsion.”181 Diplomatic protection then, gives a citizen of a State, who by crossing the border with a different country becomes an alien, a feeling of security and certainty that in the event of any violation of his rights, the country of his nationality may require certain action or desistence on part of the receiving State. In 1924, the Permanent Court of International Justice in the famous Mavrommatis concessions case declared that “it is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom 179 Art. 31(3) of Directive 2004/38/EC. 180 E.M. Borchard, The Diplomatic Protection…, op. cit., p. 57. 181 R. Jennings, A. Watts, Oppenheim’s International Law, Volume I. Peace, ninth ed., Vol. 1 Peace, 1992, p. 944.

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they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law.”182 This means that it is the right of a State to intervene on behalf of its nationals if their rights have been violated and it is the State’s will only to act so and resort to any means of action in order to obtain redress.183 States resort to diplomatic protection with respect to its citizens staying abroad mainly to obtain damages for the internationally wrongful act184 committed by the host State. It needs to be emphasized, that the right to diplomatic protection towards an alien residing in the host State may be exercised if: • • • • •

he lawfully stays in the host State; his business or professional activity is legal; his nationality is effective; there has been a violation of international law by the receiving State’s body; the alien concerned has exhausted local remedies but obtained neither restitution nor reparation.185

When a State decides to take diplomatic action, K. Skubiszewski writes, it has various means at its disposal. These can be less formal, such as drawing foreign government’s attention to a given case, notifying the host State of a worrying incident towards a national of the sending State, seeking to clarify the ensuing situation or simply protesting. The last resort may be to take judicial proceedings.186 It is commonly held that a State takes international legal action on behalf of its citizens who have been injured by acts contrary to international 182 The Mavrommatis Palestine Concessions (Greece v. United Kingdom), Judgment of the Court of International Justice of 24 August 1924. 183 P. Weiss, Nationality and Statelessness in international law, 1979, p. 32. See also: K. Skubiszewski, “Ochrona dyplomatyczna obywateli,” Państwo i Prawo, No. 10/1975, pp. 30–31; Z. Kędzia, “Prawo opieki ze strony państwa podczas pobytu obywatela za granicą (na przykładzie Polski),” in R. Wieruszewski, Prawa człowieka: model prawny, Warszawa-Wrocław-Kraków, 1991, pp. 632–633. 184 J. Sandorski, Opieka dyplomatyczna a międzynarodowa ochrona praw człowieka. Zagadnienia wybrane, Poznań, 2006, p. 79. 185 J. Białocerkiewicz, Status prawny cudzoziemca w świetle standardów międzynarodowych, Wydawnictwo Uniwersytetu Mikołaja Kopernika, 1999, p. 429. 186 K. Skubiszewski, op. cit., p. 31.

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law committed by another State (i.e. State of residence) when the individual suffered a denial of justice, unfair inequality of treatment before third State administrative bodies or violation of the rights afforded by international law.187 Both the Vienna Convention on Diplomatic Relations of 18 April 1961 and Vienna Convention on Consular Relations of 24 April 1963 point to the protection of the interests of citizens of a sending State as one of the main roles of diplomatic missions and consular institutions in a receiving State within the limits set by international law. As far as the protection of aliens is concerned, Article 36(1) of the Vienna Convention on Consular Relations plays a key role as it says that: a)

consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State; b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall also be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this sub-paragraph; c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgment. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action. Therefore, if an expelling State does not inform a consular office of the State of the alien’s nationality about his arrest upon an expulsion order, such activity of a State not only violates the Vienna Convention on Consular Relations provided that both States are Parties to the Convention, but also deprives an alien of consular protection. 187 E.M. Borchard, Diplomatic protection…, op. cit., p. 351; J. Białocerkiewicz, Status prawny…, op. cit., p. 431.

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It is worth noting that not long ago, the International Court of Justice in Avena case held that Article 36(1)(b) of the Convention on Consular Relations specifies obligations of a receiving State towards a detained person and the sending State.188 Article 36 clearly states, according to the icj, that States Parties to the Convention, in order to facilitate consular action towards a detained alien, shall meet three obligations. The first involves notifying the consul of a national’s arrest and the second consists in communicating a request to contact a consular official without delay. The last obligation is to inform the person concerned of his rights set forth in Article 36(1)(b).189 When analysing the diplomatic protection instrument as a means to protect an alien against arbitrary expulsion, it must be said that it is still in statu nascendi. M. Balcerzak points out that in the case of diplomatic protection, the interest of a State whose national suffered injury abroad is of prime importance.190 In such a situation a country may observe that it is not in its interest (in the name of so-called reason of State – raison d’état) to exercise diplomatic protection. Although a State should treat the interest of its nationals as its own, it does so very rarely, mostly for fear of aggravating relationships with other countries.191 Such an approach is justified by States by invoking the existence of international human rights protection system upon which an individual may appeal against the State that breached their rights. As. I. Gawłowicz writes, diplomatic protection is sometimes the only way to pursue one’s claims,192 a refusal of which deprives an alien of any protection at all. A turning point so far is, beyond any doubt, the judgment of the International Court of Justice in Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo) of 30 November 2010 which best proves that Vattel’s principle, “anyone who mistreats a citizen directly offends the State which must avenge its injury,” is still valid.193 Ahmadou Sadio Diallo case was filed by the Government of the Republic of Guinea in the icj regarding an 188 Avena and other Mexican Nationals (Mexico v. United States of America), Judgment of the Court of International Justice of 31 March 2004, para. 77. Avena concerns the us depriving convicted aliens of the right to communicate with a consular official. 189 J. Sandorski, op. cit., p. 300. 190 M. Balcerzak, “Proceduralne gwarancje ochrony praw człowieka,” in B. Gronowska, T. Jasudowicz, M. Balcerzak, M., R. Mizerski, Prawa człowieka i ich ochrona, Toruń 2005, p. 148. 191 I. Gawłowicz, “Ochrona dyplomatyczna w prawie międzynarodowym i w doktrynie – kwestie terminologiczne,” in A. Wróbel, Karta Praw Podstawowych w europejskim i krajowym porządku prawnym, Warszawa 2009, p. 279. 192 Ibidem, p. 285. 193 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment of the Court of International Justice of 30 November 2010.

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internationally wrongful act committed by the Democratic Republic of the Congo in the form of violating international law in respect of diplomatic protection and treatment of aliens.194 Ahmadou Sadio Diallo was of Guinean nationality who from 1964 was resident of Zaire (now Democratic Republic of the Congo195) running various businesses. In 1974 he founded a private limited liability company, Africom-Zaire (société privée à responsabilité limitée) which, in fact, was an import–export company. In 1979 he became the owner of another company Africontainers-Zaire. Diallo was the only shareholder in both companies. In the late 1980s, he initiated proceedings against his business partners in an attempt to recover various debts. Unexpectedly, on 25 January 1988, Diallo was arrested. Three days later, the public prosecutor decided to release him as there were no charges against him and the case was closed. Problems were to appear later on. On 31 October 1995, Diallo was arrested and placed in detention with a view to his expulsion. At that time, the authorities in Zaire deprived the businessman of his assets. Finally, Diallo was expelled on 31 January 1996.196 The Government of Guinea held that the expulsion of its national came at a time when he was pursuing recovery of considerable debts owed to him by oil companies of which the State was a shareholder. Because of this, Guinea decided to act on its national’s behalf before the International Court of Justice against the Democratic Republic of the Congo, demanding reparation on account of the injury suffered. Guinea held that the Democratic Republic of the Congo committed serious violations of international law with relation to arbitrary detention and expulsion of its national. Such acts, inter alia, constituted violation of the principle that aliens should be treated in accordance with minimum standard of civilization.197 When we take into consideration the discussed issue, this judgment is of major importance, mainly because it is the first judgment in which the icj referred directly to arbitrary expulsion of aliens. It addressed the notion of accordance with law, the obligation to inform an alien detained, pending expulsion, of the reasons for his arrest, the obligation to inform an alien subject to expulsion of the grounds for that expulsion, the obligation to inform without delay a consular office of the State of his nationality about the arrest 194 Ibidem, para. 14. 195 Zaire is former name of the Democratic Republic of the Congo, which was officially used between 1971–1997. Describing the Ahmadou Sadio Diallo case chronologically, I use the term Zaire, as it is applied in icj judgment. 196 Ibidem, para. 19. 197 Ibidem, para. 1.

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executed by the authorities of the State of his residence, and finally the expelling State’s acknowledgement of responsibility. Guinea invoked a breach of Article 13 of the iccpr, among others. The icj stated that there was a violation of that provision by the Democratic Republic of the Congo as the expulsion order was not made in accordance with domestic law of the country,198 the alien concerned was not informed about the reasons of his expulsion and had no possibility to submit reasons against the decision or apply to have his case reviewed by a competent authority. The Democratic Republic of the Congo then invoked compelling reasons of national security to justify its decision to expel the Guinean national. The defendant failed to provide the Court with any satisfactory information to confirm such reasons. The Court noted that States shall not arbitrarily determine the circumstances in which compelling reasons of national security under Article 13 of the iccpr exist, which allow the procedural guarantees granted to expelled aliens to be derogated.199 The Court enunciated that specifically, the Democratic Republic of the Congo gave no compelling reasons of national security that would justify the expulsion of Ahmadou Sadio Diallo.200 The Democratic Republic of the Congo did not comply with the requirements laid down by Article 9(2) of the iccpr either, as it failed to inform the alien of the reasons for his arrest. It was unable to present a single document to prove that the alien had been notified of the expulsion order at the time of his arrest.201 Guinea, moreover, invoked the violation of Article 36(1)(b) of the Convention on Consular Relations towards its national, as the authorities of the Democratic Republic of the Congo failed to inform the alien without delay about his right to contact a consular official. The Democratic Republic of the Congo denied the accusations, stating that Guinean national was orally notified upon his detention of the possibility to contact a consular office of the State of his origin for help. When examining the allegation, the icj pointed out that informing a detained person about his right to notify the consular office of the State of his origin is within the obligations of the host State. The Court noted that the defendant country submitted no evidence to prove that Ahmadou Sadio Diallo was orally informed of his right. In consequence, the icj found that Democratic Republic of the Congo violated Article 36(1)(b) of the Vienna Convention on Consular Relations.202 198 199 200 201 202

Ibidem, para. 69. Ibidem, para. 74. Ibidem, para. 74. Ibidem, paras. 84–85. Ibidem, paras. 96–97.

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11 Conclusion When expulsion proceedings lead to violation of human rights, the expulsion as such, even if reasonably justified, must be regarded as contrary to international law. Both international and regional conventions guarantee the so-called minimum standard of a right of an alien to be protected against arbitrary expulsion. States are bound by obligations adopted upon ratifying treaties concerning human rights protection to meet the requirements set forth. According to the provisions: • the expulsion must only be taken in pursuance of a decision reached in accordance with law and by a competent authority; • the expulsion shall not violate any other human rights; • the person facing expulsion shall be granted a right to be heard and appeal against the order either personally or through a representative; • an alien may appeal against arbitrariness of the expulsion order or appeal proceedings being unavailable to him. The above provisions do not concern a right not to be expelled, but rather of limited procedural guarantees which can be departed from only when compelling reasons of national security or public order so require. It should be noted that States retain a wide margin of discretion with respect to procedural guarantees in expulsion proceedings. However, the prescriptive requirement of expulsion decisions in accordance with law necessarily implies that the discretion is confined and that decisions are controlled by the law which must be consistent with the rule of law. As the ECtHR has stressed: it would be contrary to the rule of law for the legal discretion granted to the executive in areas affecting fundamental rights to be expressed in terms of an unfettered power. Consequently, the law must indicate the scope of any such discretion conferred on the competent authorities and the manner of its exercise with sufficient clarity, having regard to the legitimate aim of the measure in question, to give the individual adequate protection against arbitrary interference. There must, however, be safeguards to ensure that the discretion left to the executive is exercised in accordance with the law and without abuse.203 The law must, therefore, afford a degree of legal protection against arbitrary interference by the authorities. 203 ECtHR 20 June 2002, Al-Nashif v. Bulgaria, Application No. 50963/99, para. 119.

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It has been further established that an alien threatened with expulsion must have access to relevant documents and accessible information on the legal procedures to be followed in his case. In addition, an effective access to legal advice and legal aid should be provided. The right to an effective remedy implies that the right to participate in adversarial proceedings should be ensured, and therefore that the person should be communicated the reasons for the decision to expel and be given a fair and reasonable opportunity to dispute the factual basis for the expulsion. It should be also indicated that the effectiveness of remedies can be ensured only if the appeals filed by aliens threatened with expulsion prescribe a suspensive effect on the expulsion measures. However, it is clear that the suspensive effect of a remedy against an expulsion decision is explicitly recognized only in the context of the interpretation of Article 13 of the European Convention on Human Rights. Nevertheless, the case law of the Human Rights Committee and the European Court of Human Rights shows that aliens are not granted a right to access to a court in expulsion proceedings. For that reason it is necessary, as pointed out by international jurisprudence, to apply the principle of a fair trial in the context of expulsion proceedings. At the Inter-American level, the scope of the right to a fair trial has been interpreted broadly both for administrative procedures and for processes of expulsion of aliens. The Inter-American Commission of Human Rights interpreted the guarantees of due process established in Article 8 of the Convention so as to apply also to the proceedings of expulsion of aliens. When a State invokes national security or public order as a reason to expel a lawful alien, it is obliged to submit any material or evidence capable of corroborating that the interests of national security or public order are at stake. In turn, an alien, subject to expulsion on grounds of public order or national security should be given an opportunity to present his case without being placed at a disadvantage, meaning he should be provided with the possibility to have his expulsion decision reviewed by an independent and impartial body. A body that would assess all relevant legal and factual bases and would eliminate any possible abuse. In the event of the arbitrary expulsion of an alien, it should be finally said, his State of nationality may exercise its right to protect its citizens abroad under diplomatic protection. The citizen of a sending country is, above all, granted a consular protection which encompasses legal assistance as well.

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Polish Approach to Protection against Arbitrary Expulsion 1 Introduction Upon deciding on expulsion of an alien from the territory of the Republic of Poland it should be noted that even though domestic regulations justify the expulsion, the protection may stem expressis verbis from the provisions of other legal acts. The regulations relating to the protection of an individual enshrined in international human rights treaties ratified by Poland must be taken into account when deciding on issues concerning an alien’s stay. Poland entered the International Covenant on Civil and Political Rights on 18 March 19771 and on 19 January 1993 it ratified the Convention for the Protection of Human Rights and Fundamental Freedoms.2 Article 87 of the Constitution of the Republic of Poland of 1997 clearly indicates the position of both the Covenant and the Convention in Polish sources of law and specifies that ratified international treaties are the sources of universally binding law. This means that the iccpr and the echr can be applied directly. Under Article 91(2) in relation to Article 241(1) of the Polish Constitution, provisions of an interna­ tional agreement have precedence over a statute if the statute cannot be reconciled with the provisions of the agreement.3 Article 9 of the Polish Constitution gives an additional guarantee that basic rights and freedoms of an individual enshrined in international treaties will be observed, according to which “the Republic of Poland shall respect interna­ tional law binding upon it.” The constitutional principle of respect of inter­ national law plays a significant role in assessing the influence of international law on the Polish legal system. The above principle binds all bodies of the Republic of Poland. The Constitutional Tribunal in its judgment of 27 April 2005 stressed that “Article 9 of the Constitution is not only a grandiose declara­ tion addressed to the international community, but also an obligation of state bodies, including the government, parliament and the courts, to observe the 1 Polish Journal of Laws of 1977, No. 38, item 167. 2 Polish Journal of Laws of 1993, No. 61, item 284. Poland also ratified the Protocol No. 7 to the echr. 3 Judgment of the Supreme Administrative Court of 12 September 2007, No. osk 1706/2006, unpublished. See also: Judgment of the Constitutional Tribunal of 12 March 2002, No. P 9/01.

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international law, which is binding for the Republic of Poland. Apart from appropriate changes in the national legal order, the implementation of this obligation may require the bodies of public administration to undertake spe­ cific actions within the scope of their assigned competencies.”4 In its judgment of 11 May 2005, the Tribunal stated that: that the legal consequence of Article 9 of the Constitution is the assump­ tion that, in the territory of the Republic of Poland, apart from the norms (provisions) enacted by the national legislator, the regulations (provisions) originating outside the national (Polish) system of legislative bodies also apply. The constitution-maker has decided that the system of law which is binding in the territory of the Republic of Poland will have a multi-faceted character, and will encompass, apart from legal acts constituted by Polish legislative bodies, acts of international and Community law.5 Poland’s accession to the iccpr and the echr involves not only accepting standards enshrined in their provisions but also indirect application of the case law of the European Court of Human Rights and Committee of Human Rights regarding protection of aliens against arbitrary expulsion. The Polish law has to be in line with international human rights agreements to which Poland is a party. In other words, Poland has the obligation to make sure that the law regulating expulsion of non-nationals, who are lawfully admitted into its territory, does not violate the rights of aliens protected under the echr and the iccpr. Therefore, this chapter will present the Polish stan­ dard of granting protection against arbitrary expulsion and examine how international law framework has been implemented in domestic law. 2

General Rules Governing the Protection of Aliens against Arbitrary Expulsion

2.1 Introduction Under Polish legislation, the order to expel an alien from the territory of the Republic of Poland is issued in administrative proceedings in compliance with procedural guarantees.6 The course of action varies depending on the reasons 4 Judgment of the Constitutional Tribunal of 27 April 2005, No. P 1/05. 5 Judgment of the Constitutional Tribunal of 11 May 2005, No. K 18/04. 6 J. Borkowski, in J. Chlebny (ed.) Prawo o cudzoziemcach. Komentarz, C.H. Beck, Warszawa 2006, p. 205.

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for expulsion and the urgency of its application having regard to protected public interests. Article 302 of the Act on Aliens of 12 December 2013 defines in detail the grounds for expulsion.7 Because of the limited scope of this book, I will discuss only the ground regarding the protection of security and public order as, in practice, it may become subject to abuse on part of public adminis­ tration bodies. The decision as to whether an alien’s residence constitutes a threat to the State security, defence or the public policy is made by an adminis­ trative body. In this respect, the body has been obliged by Polish administrative courts to examine and point to the facts that clearly show there is a threat on the part of an alien.8 In light of the views expressed in the judicature, the assess­ ment of the reasons for expulsion must be carried out in the context of existing threats on part of an alien to public policy, and not on the grounds of hypotheti­ cal threats and arbitrary acknowledgment of the bodies.9 In a judgment of 21 March 2001, the Supreme Administrative Court held that the argument concerning the necessity to protect public policy must be proportional to the infringement on the part of an alien. Insignificant offence or unconscious viola­ tion cannot be treated as grounds for expulsion on account of threat to security and public order without bearing in mind other circumstances in a given case.10 In every case, the judicial body has an obligation to indicate which interest of the Republic of Poland may be breached and prove, if necessary, that it requires limiting individual rights.11 If the expulsion order lacks such explanation, the decision is likely to have been made without explanatory proceedings. In Polish administrative court judicature, it is emphasized that not every infringement of law (“legal order”) on the part of an alien may constitute a threat to security and public order as an explanation is required as to why the infringement makes the alien’s residence undesirable.12 The terms “legal order” and “public order,” J. Chlebny points out, are not identical.13 7

8 9 10 11 12

13

Polish Journal of Laws of 2013, item 1650. It should be mentioned that under new Act of 12 December 2013 on Aliens the return procedure for aliens from Poland has changed. The decision on expulsion from Poland has now been replaced by a single decision obliging the foreigner to return. This decision will be issued by the Border Guard (instead of the Voivode). Judgment of the Supreme Administrative Court of 31 July 2001, No. V sa 501/01. Judgment of the Supreme Administrative Court of 30 November 2006, No. II osk 1475/06. Judgment of the Supreme Administrative Court of 21 March 2001, No. V sa 2662/00. Judgment of the Supreme Administrative Court of 21 June 2001, No. V sa 3718/00. Judgment of the Supreme Administrative Court of 12 November 2003, No. V sa 3480/02. Judgment of the Supreme Administrative Court of 12 February 2003, No. V sa 816/2002. See also: Judgment of the Voivodeship Administrative Court in Warsaw of 7 October 2005, No. V SA/Wa 1423/05. J. Chlebny, Ochrona interesu…, op. cit., p. 17.

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A decision to impose the obligation to leave the country shall be issued to an alien: (a) ex officio by the commanding officer of the Polish border guard or the commanding officer of a Polish border guard outpost, which established the premises justifying the decision to impose the obligation to leave the country on a foreigner; (b) at the request of a Voivode, the Minister of National Defence, the Chief of the Internal Security Agency, Chief of the Intelligence Agency, an author­ ity of the Customs Service, a voivodeship or poviat (municipal) police commander, the commanding officer of a Polish border guard unit or the commanding officer of a Polish border guard outpost territorially compe­ tent for the seat of the authority that submits the application or for the place of residence of the foreigner.14 Since the decision to impose the obligation to leave the country is of an admin­ istrative nature, pursuant to Article 107(1) of the Code of Administrative Procedure (cap), it should include the following: the name of the public administration body; the date of issue; the name(s) of the party or parties; the legal authority referred to; a ruling; a factual and legal justification; an advisory notice as to whether and how an appeal may be brought; and the signature, name and position of the person authorized to issue the decision.15 In the judi­ cature it has been stated that reasons for the decision should contain the facts the body regards as proven, or else there will be doubts as to whether the fac­ tual grounds are authentic.16 The Act on Aliens introduces a limitation con­ cerning justification of the expulsion decision. Under Article 6(1) of the Act on Aliens, an authority may refrain from drawing up their justification concerning the factual grounds, if it has been justified by national security or defence, or the protection of public safety and order. However, the authority concerned shall not refrain from its obligation to collect evidence and bring it forward before administrative court. An alien to whom the order was issued is entitled to defend his rights either before administrative bodies or independent court, regardless of whether or not the order was justified by the above-mentioned reasons. What is more, the authority that issued the decision to impose the obligation on an alien to leave the country shall provide an understandable interpretation or translation of the legal basis for the decision, the ruling and 14 15 16

Art. 310 of the Act on Aliens of 12 December 2013. Polish Journal of Laws of 2000, No. 98, item 1071. Judgment of the Supreme Administrative Court of 30 December 1987, No. S.A./Gd 1045/87.

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instructions about whether and how an appeal against their decision may be filed (Article 327(2) Act on Aliens). In addition, the decision to impose the obligation on an alien to leave the country shall define a deadline for voluntary return, which ranges from 15 to 30 days from the date of notification of the decision (Article 315(1) Act on Aliens). However, the aforementioned decision does not specify the period for volun­ tary return of an alien if it is required for reasons of national security or defence, the protection of public order and safety. The decision to impose the obligation on an alien to leave the country issued without a specified period for voluntary return due to national security shall be immediately enforceable (Article 315(2) Act on Aliens). The Polish legislator also provides that: the authority issuing the decision to impose the obligation on an alien to leave the country may extend the deadline for voluntary return if the alien is obliged to appear in person before the Polish public authority or if his presence within the territory of the Republic of Poland is required because of the interest of the Republic of Poland or exceptional personal situation of the alien, resulting in particular from the length of the alien’s stay within the territory of the Republic of Poland, from the alien’s family and social ties or a need to continue education by a minor child of the alien.17 2.2 Procedural Safeguards Under Article 129 paragraphs 1 and 2 of the Code of Administrative Procedure, an alien has a right to appeal against the expulsion order to the Head of the Office for Foreigners via the authority who issued the decision within 14 days of it being served. If the appeal is brought within the deadline, the enforce­ ment of the decision shall be suspended (Article 130(2) cap). However, if the decision is enforceable immediately,18 the above term does not apply. The order is enforceable from the date the alien was served with it. An alien is entitled to challenge the decision issued by the Head of the Office for Foreigners to the Voivodeship Administrative Court. If the Voivodeship Administrative Court does not quash the expulsion order, an alien may file an appeal with the Supreme Administrative Court. If the Voivodeship

17 18

Article 316(1) Act on Aliens. The decision becomes enforceable immediately if it is required for reasons of national security or defence, the protection of public order and safety (Art. 315(2) Act on Aliens).

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Administrative Court fails to pass its judgment before the date indicated in the expulsion order, the alien should leave the territory of the Republic of Poland and enforce his rights from abroad. For that reason, he may appoint a counsel to represent him. An alien may also enjoy so-called “provisional protection” upon filing a petition to suspend the decision appealed against. This provision may be found under Article 61(3) of the Law on Proceedings before Admini­ strative Courts of 30 August 2002. After the complaint has been lodged, the Court, at the claimant’s request, may completely or partially suspend the exe­ cution of the decision.19 Provisional protection may only be administered in compliance with provisions under Article 61(3) of the Law on Proceedings before Administrative Courts, i.e. in situations where there is a risk of signifi­ cant damage or irreparable harm if the expulsion order was enforced. The nature of the judgment on suspending the decision is optional, meaning it is within the court’s discretion. It is the claimant’s obligation to forward the reasons for suspending the decision. The administrative court does not scruti­ nize the decisions on suspending the order. At this stage of the proceedings, arguments that relate only to the legitimacy of the submitted petition can be taken into consideration. However, the Supreme Administrative Court in its judgment of 31 March 2005 stated that “the Court has an obligation ex officio to take into consideration all circumstances for suspending or refusing to suspend the execution order.”20 Following the judicature of the Supreme Administrative Court, granting an alien provisional protection in form of suspending execution of the expulsion order while judicial proceedings are pending complies with standards of a fair trial in proceedings and due process of law.21 What is more, if an alien has filed a complaint to the Voivodeship Administrative Court against the decision to impose the obliga­ tion to leave the country along with a request to suspend its execution, the deadline for voluntary return or the deadline for forced execution of this deci­ sion by virtue of the law shall be extended until the date of issue of a decision on such an application by a Voivodeship Administrative Court (Article 331(1) Act on Aliens). In practice, aliens very often invoke the above-mentioned procedure and submit a petition to suspend the expulsion decision. As an example, a complaint 19 20 21

Polish Journal of Laws of 2002, No. 153, item 1270. Decision of the Supreme Administrative Court of 31 March 2005, No. II oz 155/05. Judgment of the Supreme Administrative Court of 14 December 2005, No. II oz 1330/05. See also: Decision of the Voivodeship Administrative Court in Warsaw of 9 September 2009, No. V SA/Wa 831/09; Decision of the Voivodeship Administrative Court in Warsaw of 11 June 2011, No. V SA/Wa 62/11.

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was made to the Voivodeship Administrative Court in Warsaw against the decision of the Head of the Office for Foreigners in which the attorney of the claimant included a petition to suspend the execution of the order as the expelled alien would suffer financial and personal loss.22 The Voivodeship Administrative Court in Warsaw considered the petition as it acknowledged that the alien’s stay in the territory of Poland, while the proceedings are pend­ ing, was justifiable. The Court held that if the alien were deported from Poland before the Voivodeship Administrative Court in Warsaw could consider the appeal, he would be deprived of the possibility to be present during judicial proceedings as well as the right to a court hearing.23 Bearing in mind the real and legal consequences of the decision, the Court stated that not suspending the execution of expulsion order would bring irreparable harm. Therefore, the Court decided to suspend the execution of the order concerning expulsion of the alien from the territory of the Republic of Poland.24 Needless to say, the possibility to have an expulsion decision suspended is of prime importance to aliens facing arbitrary expulsion. In the light of Article 9 of the Code of Administrative Procedure: public administration bodies are required to provide full and proper information to the parties regarding the factual and legal circumstances which may affect the establishment of their rights and the obligations that are the subject of the administrative proceedings. The bodies shall take care to ensure that parties and other persons involved in proceed­ ings do not suffer any loss owing to ignorance of the law and shall there­ fore provide the necessary clarifications and advice.25 The scope of this provision is quite wide as it obliges the bodies to inform the party concerned about the course of proceedings, enables them to get acquainted with records, remedies available, and gives access to public infor­ mation.26 Consequently, officers have an obligation to give aliens as accurate 22 23 24

25 26

Decision of the Voivodeship Administrative Court in Warsaw of 25 August 2010, No. V SA/ Wa 1528/10. Judgment of the Supreme Administrative Court of 14 December 2005, No. II oz 1330/05. Decision of the Voivodeship Administrative Court in Warsaw of 25 August 2010, No. V SA/ Wa 1528/10; See also: Decision of the Voivodeship Administrative Court in Warsaw of 4 August 2009, No. V SA/Wa 761/09. Polish Journal of Laws of 2000, No. 98, item 1071. K. Wencel, “Prawa cudzoziemców w postępowaniu przed organami administracji public­ znej,” Analizy Raporty Ekspertyzy Stowarzyszenia Interwencji Prawnej, No. 4/2009, publica­ tion available at: http://www.interwencjaprawna.pl/projekty-are.html.

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and reliable information concerning the right to be protected against expul­ sion as possible. According to Article 7 of the Act on Aliens, an alien shall be informed in language understandable to him about the procedure and its principles as well as the rights granted to him and obligations imposed on him by authorities conducting expulsion proceedings from the territory of the Republic of Poland. The body that conducts the proceeding on the issue of the decision to impose the obligation to leave the country shall provide an interpreter for aliens who do not have adequate knowledge of the Polish language (Article 327(1) Act on Aliens). It should be emphasized that under Article 5(1) of the Law on the Organization of Common Courts27 of 27 July 2001 which applies to administra­ tive courts under Article 29 of the Law on the System of Administrative Courts of 25 July 2002, Polish is the official language before the courts and any person who has insufficient command of the Polish language has the right to act before a court in his native language with the gratuitous assistance of an inter­ preter (Article 5(2) of the Law on the Organization of Common Courts). In a cassation complaint to the Supreme Administrative Court28 an alien, Mohamed K. claimed that the judgment passed in first instance violated Article 106(2) of the Law on Proceedings before Administrative Courts of 30 August 2002. The claimant explained that the Court of first instance limited his participa­ tion to only asking via a representative of a social organization body whether he made the complaint. Such a form of participation in judicial proceedings was, according to the claimant, insufficient as it deprived him of the possibility to protect his rights by refusing his active participation in the trial. The Supreme Administrative Court declared the complaint admissible and, as a result, revoked the judgment and handed the case over to be reconsidered by the Voivodeship Administrative Court. According to the Supreme Administrative Court, being assisted by an interpreter during proceedings is treated as proce­ dural right that a party is entitled to. Therefore, the participation of a person who does not have a good command of Polish will affect the possibility to pro­ tect the rights of that person in proceedings and, as a result, may lead to the proceedings being invalid. Insufficient command of Polish may result in lim­ ited possibility to be protected before the court and therefore violate the right to fair trial.29 The Supreme Administrative Court pointed out that the content of Article 5(2) of the Law on the Organization of Common Courts holds that appointing an interpreter in proceedings is binding upon the court as it is 27 28 29

Polish Journal of Laws of 2001, No. 98, item 1070. Judgment of the Supreme Administrative Court of 30 October 2008, No. II osk 1097/07. Judgment of the Supreme Administrative Court of 30 October 2008, No. II osk 1097/07.

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obliged to provide an interpreter if an alien has insufficient command of the official language of court.30 Appointing an interpreter should, above all, help a person who does not know the Polish language to understand the procedural activities undertaken by the court and have a real opportunity to take active part in the proceedings.31 The Supreme Administrative Court in this case stressed that there were flagrant shortcomings in the Voivodeship Adminis­ trative Court’s actions, because the claimant, due to language barrier, was deprived of the right to act in person (inter alia make a statement under Article 106(2) of the Law on Proceedings before Administrative Courts), which led to limiting his rights to defence. Due to the fact that the alien, despite not having been appointed a counsel, was present at the trial, he should have been informed about his right to an interpreter so that the trial would be fair and the Court would comply with its obligation enshrined in Article 6 of the Law on Proceedings before Administrative Courts.32 According to the Supreme Administrative Court, under Article 5(2) of the Law on the Organization of Common Courts, administrative courts should inform an alien about the right to a free interpreter, in compliance with Article 6 of the Law on Proceedings before Administrative Courts, whenever there is a risk he does not have a sufficient command of Polish language.33 An alien, being a party to the proceedings, has the right to view his files, make notes, copies or demand notes or copies made of the case file be authen­ ticated which, in each case, must be justified by the interests of the party (Article 73 paragraphs 1, 3 of the cap). A party may be refused access to his files, make notes and copies, and in such case the refusal needs to be in writing in form of an order which shall be subject to complaint (Article 74(2) of the cap). The legislator, however, declared that the provision under Article 73 of the cap shall not apply to case files which contain classified information as “secret” or “top secret” or those the public administration body excludes for reasons of being against State interests (Article 74(1) of the cap). This means that records of the proceedings are available neither to the party nor the coun­ sel. There is a question, therefore, of what to do if an alien faces expulsion because he constitutes a threat to the State security, defence and the public policy, or his stay is in breach of the interests of the Republic of Poland, and an administrative body cannot give evidence to prove its decision because it is secret. Without a doubt, an alien, in such circumstances, should have an access 30 Ibidem. 31 Ibidem. 32 Ibidem. 33 Ibidem.

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to incriminating documents as otherwise he will not have a chance to exercise his right to a defence. The ECtHR has pointed out, on many occasions, that to avoid any possible abuse of the notion of national security reasons, an alien is protected by adversarial proceedings before an impartial and independent body authorized to verify the reasons for his expulsion as well as gather evi­ dence. Although the ECtHR has acknowledged that within the due adversarial procedure there can be “appropriate limitations” concerning classified infor­ mation, it emphasized in Kaushal and others v. Bulgaria that domestic proce­ dure does not comply with conventional standards, since neither an alien nor his counsel were informed of the charges against him, except for stating that he posed a threat to national security.34 Hence, these exceptions necessitate a careful balancing test between individual rights of an alien and State security interests. The Supreme Administrative Court, in a case concerning a refusal to access records,35 found that classifying documents under the Protection of Classified Information Act of 22 January 1999 as “secret” makes them unavailable to the party to the proceedings.36 The Court stated that not granting the party full access to classified information definitely limits his active participation in the proceedings and constitutes a potential threat to a fair trial. This limitation is of unusual nature and it concerns the protection of the greatest value which is the interests of the Republic of Poland.37 34 35

36

37

ECtHR 2 September 2010, Kaushal and others v. Bulgaria, Application No. 1537/08, para. 29. Judgment of the Supreme Administrative Court of 31 August 2005, No. II osk 655/05. The case concerned the complaint by Ahmed A. against the decision of the Head of the Office for Repatriation and Aliens of 21 June 2004 on a refusal to review classified informa­ tion. Giving the grounds for the decision, the Court stated that during proceedings before the second instance court concerning granting temporal residence permit, Internal Security Agency provided documents, classified as secret which clearly stated that the alien’s residence in the territory of the Republic of Poland constitutes a threat to national security and public order. Under Art. 23 para. 1 of the Protection of Classified Information Act of 22 January 1999 (Polish Journal of Laws of 1999, No. 11, item 95 with further amendments), classified infor­ mation designated “top secret” or “secret” concerns State secrets. According to Art. 2(1) of the Act, a national secrecy is any information included in appendix 1 to the Act, which if released may cause a serious damage to the interests of the Republic of Poland, such as public order, defence, national security, international relations or economic matters of the country. The Act was abolished and replaced by the Protection of Classified Information Act that came into force on 5 August 2010. Polish Journal of Laws of 2010, No. 182, item 1228. Judgment of the Supreme Administrative Court of 31 August 2005, No. II osk 655/05.

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It has been stated in the legal doctrine that national security, defence, pub­ lic security and policy reasons which justify the refusal of residence permit for a fixed period are so-called “vague” notions.38 The Supreme Administrative Court, when commenting on circumstances concerning security and public order, emphasized that “substantial reasons justifying a real threat on part of an alien need to be provided.”39 The proceedings on granting a residence permit for a fixed period require that the border guard division, the police and the Internal Security Agency pass an opinion which is secret and inaccessible to the alien. The voivode competent with respect to granting a residence permit for a fixed period in the first instance, has no possibility to verify all the information given. The statements submitted in the opinion are binding on the voivode, who then prompts a decision based on them. Moreover, because of the classified nature of the information, which is the grounds for the deci­ sion, the justification is limited, in practice, to indicating that the decision was taken for national security reasons. The claimant has the possibility to appeal to the Head of the Office for Foreigners and then submit a complaint against his decision to the administrative court. Nevertheless, because of the classified nature of the material, the counsel has no access to either, and the person con­ cerned has no possibility to challenge the decision. To illustrate the complexity of this issue, the recent case of Chakib Marakchi, a Moroccan citizen who was expelled from Poland on grounds of national security threat, is worth mention­ ing.40 The Moroccan had lived in Poland for eight years. He completed a uni­ versity degree and commenced doctoral studies. In March 2009, he filed a petition with the voivode of Małopolska, as he did every year, to be granted a residence permit for a fixed period. In May 2009, the voivode of Małopolska refused to grant Marakchi a residence permit, invoking national security rea­ sons and obliged him to leave the territory of Poland. The decision was given an order of immediate enforceability. What is interesting, is that the voivode excluded from the open file materials including the opinion passed by the Internal Security Agency. At the same time the voivode refused the alien access to the materials, depriving him of an effective defence. Moreover, Marakchi’s details were added to the Polish list of unwelcome foreigners and the Schengen Information System. Marakchi applied to the Head of the Office for Foreigners. He also lodged a plea with the Public Prosecutor’s Office, in which he accused 38 39 40

J. Chlebny (ed.), Prawo o cudzoziemcach. Komentarz, C.H. Beck, Warszawa 2006, p. 132. Judgment of the Supreme Administrative Court of 22 October 2002, No. V sa 155/2002, quotation after J. Chlebny (ed.), Prawo o cudzoziemcach…, op. cit., p. 133. Judgment of the Supreme Administrative Court of 14 December 2011, No. 2293/10, unpublished.

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the Internal Security Agency officers of tampering with operation materials to mislead the administrative body. In January 2010, the Head of the Office for Foreigners sustained the decision. He obliged Marakchi to leave Poland within seven days, and gave an order of immediate enforceability. The alien left the territory of Poland. Simultaneously, a complaint was filed against the decision of the Head of the Office for Foreigners together with a petition to suspend the execution of the decision while the case was pending, as it would cause much harm to the alien and might have irreversible consequences. The claimant pointed out that he was lawfully staying in Poland, obeyed the law, wanted to start a family and was writing his doctoral thesis. He argued that leaving the territory of Poland would lead to his removal from the list of students of post-graduate studies and would prevent him from participating in the trial. The Voivodeship Administrative Court in Warsaw in its judgment of 16 April 2010 suspended the execution of the order of the Head of the Office for Foreigners dated 15 January 2010 on the refusal of the residence permit and obligation to leave Poland.41 However, on 21 July 2010, the Voivodeship Administrative Court in Warsaw dismissed Marakchi’s appeal against the ruling of the Head of the Office for Foreigners who had refused to grant a resi­ dence permit for a fixed period. Marakchi’s counsel filed a cassation complaint to the Supreme Administrative Court against the judgment of the Voivodeship Administrative Court in Warsaw pointing out numerous mistakes made by the latter. On 14 December 2011, the Supreme Administrative Court quashed the judgment and referred the case for reconsideration by the Voivodeship Administrative Court.42 The Act on Aliens must therefore be amended so that the procedure enables an alien facing expulsion to respond to charges against him. For this purpose it is worth looking at Canadian Immigration and Refugee Protection Act of 2001.43 Canadian authorities introduced legal provisions which aim at balanc­ ing the rights and opposing interests of a State and an alien facing expulsion. To achieve that, Canadian legislator provided for maintenance of confidential State security data and the right of an expelled person to be protected against arbitrary expulsion. In the light of Article 83(1) of the Act, the judge shall 41 42

43

Decision of the Voivodeship Administrative Court in Warsaw of 16 April 2010, No. V SA/Wa 535/10. Judgment of the Supreme Administrative Court of 14 December 2011, No II osk 2293/10, unpublished. The expulsion of Ch. Marakchi is being monitored by the Helsinki Foundation for Human Rights. Immigration and Refugee Protection Act of 1 November 2001, available on the website of Canadian Ministry of Justice: http://laws-lois.justice.gc.ca/eng/acts/I-2.5/FullText.html.

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provide the alien with a summary of information and other evidence gathered in the proceedings, except for that which is confidential for national security reasons so that the alien is informed about the charges against him. What is more, under Article 78 of the Act, the judge shall determine whether the expul­ sion order on grounds of national security is reasonable or not.44 Furthermore, the judge shall appoint a special advocate to act in the proceedings.45 The main purpose of this – incorporated into the Canadian Act in 2008 – is to grant an alien facing expulsion the possibility to access case files that are classified as confidential because of national security reasons by his special advocate.46 It was the Supreme Court of Canada that prompted the change in the legal order. In its judgment of 23 February 2007, the Court held that provisions that prevented a foreign national from viewing the information on the basis of which the expulsion decision was passed infringed the guarantees enshrined in the Canadian Charter of Rights and Freedoms.47 Special advocates are lawyers who are independent of government and appointed by the Court. An official list of these persons is established by the Minister of Justice, based on recommendations of an independent advisory group appointed to examine applications submitted by special advocates.48 Under Article 85, paragraph 1(1) of the Act, the role of a special advocate is to protect the interests of a foreign national in proceedings when information or other evidence is heard, in the absence of the person concerned and their counsel.49 Special advocates have the required government security clearance that enables them to access confidential information. The Minister of Public Safety shall provide a special advocate with a copy of all information that is provided to the judge but is not disclosed to the foreign national and his coun­ sel.50 One of the main roles of a special advocate is to challenge the reliability of charges against the alien as well as arguments forwarded by proper bodies 44 Ibidem. 45 Art. 83. (1)b. of the Immigration and Refugee Protection Act: “A special advocate is a law­ yer who has the required government security clearance for accessing information which the government must keep confidential.” 46 The provisions came into force on 14 February 2008 together with amendments to the Immigration and Refugee Protection Act, information available on the website of the Parliament of Canada: http://www.parl.gc.ca/LegisInfo/BillDetails.aspx?Bill=C3&Langua ge=E&Mode=1&Parl=39&ses=2&View=0. 47 Charkaoui v. Canada, decision of the Supreme Court of Canada of 23 February 2007, avail­ able at: http://scc.lexum.org/en/2007/2007scc9/2007scc9.html. 48 Art. 85. (1) of the Canadian Immigration and Refugee Protection Act of 1 November 2001. 49 Art. 85.1 (1) of the Canadian Immigration and Refugee Protection Act of 1 November 2001. 50 Art. 85.4 (1) of the Canadian Immigration and Refugee Protection Act of 1 November 2001.

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to keep certain information confidential.51 They also participate in the proceedings held in camera during which they may cross-examine witnesses and are present when verifying evidence.52 Following the Canadian legal approach, there should be an approach to implement regulations in Polish legislature, to appoint a corpus of special advocates who could access all documents (including classified ones) and would protect the interests of the alien, ensuring fairness of the proceedings. These advocates could participate in expulsion proceedings and consequently use legal means with which to benefit the party to the proceedings.53 If expul­ sion of a lawful alien from the territory of the Republic of Poland is justified under Article 302, paragraph 1(9) of the Act on Aliens of 12 December 2013, the participation of a special advocate in expulsion proceedings would be obligatory. Article 7 of the cap is also applicable in expulsion proceedings, which states that “public administration bodies shall uphold the rule of law during proceed­ ings and shall take all necessary steps to clarify the facts of a case and to resolve it, having regard to the public interest and the legitimate interests of citizens.”54 Although by “the legitimate interests” the article refers only to “citizens,” such a literal interpretation, as the Supreme Administrative Court rightly noted, is inappropriate.55 In the Court’s opinion this concerns the legitimate interest of every individual who participates in an administrative proceedings, regardless of whether he is a Polish citizen or a foreign national.56 In practice, however, an expulsion order is made without considering the facts of the case, or the personal or family situation of the alien, not to mention the legitimate interest of the person concerned.57 It is inconsistent with the rule expressed under Article 7 of the cap not to assess the individual “legitimate interest” of an alien. Moreover, when issuing an expulsion decision, the bodies do not always make reference to the circumstances, charges and evidence forwarded by an alien, nor give sufficient reasons to justify the decision they make. Therefore, all cir­ cumstances concerning an alien facing expulsion should, in accordance with 51

Art. 85.1 (2)(a) of the Canadian Immigration and Refugee Protection Act of 1 November 2001. 52 Art. 85.1 (2)(b) and Art. 85.2 (b) of the Canadian Immigration and Refugee Protection Act of 1 November 2001. 53 See: Art. 31(3) of the cap, Polish Journal of Laws of 2000, No. 98, it. 1071. 54 Polish Journal of Laws of 2000, No. 98, item 1071. 55 Judgment of the Supreme Administrative Court of 18 February 2000, No. V sa 629/99. 56 Ibidem. 57 Judgment of the Voivodeship Administrative Court in Warsaw of 26 April 2006, No. V SA/ Wa2/06.

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provisions under Article 7 of the cap and Article 77 of the cap,58 be thoroughly examined by an adjudicating body. To be effectively protected against arbitrary expulsion, an alien is granted the right to settle his case without unnecessary delay.59 In practice, this right is one of the most frequently violated by public administrative bodies. Offices, as K. Wencel points, frequently fail to meet the deadlines laid down by the Code of Administrative Procedure. It also happens that an alien is not informed about failure to deal with the case within the deadline, the reasons for the delay, nor is he informed of a new deadline for dealing with the case.60 The above-mentioned situation is illustrated by a cassation complaint made by Agostino D.S. before the Supreme Administrative Court (when the previous Act on Aliens of 25 June 1997 was in force).61 At the time of the proceedings, Agostino D.S. was a student. His residence in Poland, while he was studying, was lawful and documented with successive visas. In October 1998, the claim­ ant applied for another visa to be able to finish his studies. The Minister of the Interior and Administration agreed to issue a visa, which the alien picked up on 18 March 1999, with an expiry date of 31 March 1999. The ma exam was due on 20 April 1999. On 9 April 1999, he applied for another visa to be able to com­ plete his studies. The voivode, however, refused to issue one, pointing out that when applying for visa, the alien was already unlawful resident. The Minister of the Interior and Administration refused to grant the claimant a stay visa either. In his complaint to the Supreme Administrative Court, Agostino D.S. stated that delay in legalizing his residence was caused by “bureaucracy, which prevented him from submitting a school certificate before March 31st 1999.”62 The Supreme Administrative Court considered the complaint justified and quashed the decisions of the Minister and the voivode. The Court, when giving grounds for such an approach, pointed out that the claimant had explained that he had applied to administrative body before the visa expired. The application for legalizing his stay was rejected. He was not informed about the consequences of a violation of the deadline either. The application lacked a school certificate signed by a representative of its authority. After having completed all the documentation, the alien lodged an application after the 58

Art. 77(1) of the cap: “The public administration body is required to comprehensively collect and examine all evidential material.” 59 Art. 35(1) of the cap which says that “public administration bodies shall deal with cases without unnecessary delay.” 60 K. Wencel, op. cit., pp. 8–9. 61 Judgment of the Supreme Administrative Court of 20 April 2000, No. V sa 1609/99. 62 Ibidem.

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expiry date of his visa. The Supreme Administrative Court held that in such circumstances, “the delay was due to faulty acting of administrative body. The proper action would involve recording the claimant’s application with the date of its submission and calling him in to complete the documents. The deadline would have been kept and the claimant would not have been charged with applying for visa while residing unlawfully.”63 The Supreme Administrative Court acknowledged that it is inadmissible to claim that the application was submitted after the deadline, since the body, though under an obligation to do so, failed to record as the date of its submission the moment the claimant made it clear that it was incomplete, before the visa had expired.64 The Supreme Administrative Court added that pursuant to Article 7 of the cap the decision shall be favourable to the party provided the public interest is not injured and it is within the scope of the body’s means and powers.65 Hence, the administrative courts are right to say that “it is unreliable to conduct adminis­ trative proceedings so that their length makes documents – on grounds of which an alien resides in Poland – expire shortly after the decision of the first instance has been handed in, what leads to the alien having to return to his country of origin to legalize further stay.”66 In the expulsion proceedings, an alien as a party to the proceedings may, under Article 32 of the cap, act through an attorney-in-fact, unless the nature of the case requires his personal participation. Any natural person having legal capacity may act as an attorney-in-fact. In practice, however, it is important that an alien is represented by a professional, i.e. an advocate or a legal advisor. Moreover, Article 329(1) of the Act on Aliens states that “the authority that conducts the proceedings on the issue of the decision to impose the obliga­ tion to leave the country on a foreigner shall inform a foreigner about nongovernmental organizations that provide assistance to foreigners, including legal assistance.” 3

Respect for Private and Family Life as Grounds Precluding Arbitrary Expulsion under Polish Law

An administrative body, before making an expulsion decision of a person to whom the principle of the protection of family and private life under 63 Ibidem. 64 Ibidem. 65 Ibidem. 66 Judgment of the Supreme Administrative Court of 3 August 1999, No. V sa 230/99.

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Article 8(1) of the echr applies, shall examine circumstances which are rele­ vant to the proper execution of Article 8(2) of the echr. Pursuant to Article 8 of the echr, not only family ties in well-functioning families based on marital ties are protected, but also – as the Voivodeship Administrative Court in Warsaw held – “personal ties between persons who remain in a de facto relationship, as well as family ties between a parent and a child, fruit of a marriage that was dissolved by a divorce.”67 The Supreme Administrative Court, in its judgment of 30 November 2005, added that “when making an expulsion decision, bodies should remember that it might turn out inadmissible, bearing in mind that the protection laid down in Art. 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms applies to family ties between a child and his father even if the relation is solely biological (not legal) provided the existing relationship between them proves a real family tie.”68 In their complaints to Voivodeship Administrative Courts, aliens can point to the fact that the administrative body failed to consider their family situa­ tion. As an example, the case of a mother of three dependent children she had full parental custody over can be mentioned. The Voivodeship Administrative Court in Warsaw stated that administrative body made expulsion decision without “having regard to legitimate interest of the claimant and her children and therefore violated the provisions under Art. 7 of the cap and is in breach of the principle of the protection of family and parenthood laid down in the Constitution of the Republic of Poland, values of which are protected by both Polish and international law.”69 The Voivodeship Administrative Court in Warsaw, after having examined another complaint against the decision of the Head of the Office for Foreigners regarding expulsion from the territory of the Republic of Poland held that “a proper application of Art. 8(2) of the European Convention on Human Rights requires an honest analysis and assessment of personal context of the claimant, his family (parental) ties in particular. The justification of the sued decision failed to consider the above-mentioned circumstances and therefore did not show that the conditions to repeal the protection of family life (enshrined in Art. 8 of the Convention) of the claimant were met.”70 The Court 67 Ibidem. 68 Judgment of the Supreme Administrative Court of 30 November 2005, No. II osk 1148/05. 69 Judgment of the Voivodeship Administrative Court in Warsaw of 26 April 2006, No. V SA/ Wa2/06. See also: Judgment of the Voivodeship Administrative Court in Łódź of 24 April 2008, No. III SA/Łd8/08. 70 Judgment of the Voivodeship Administrative Court in Warsaw of 16 November 2007, No. V SA/Wa1569/2007.

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was of the opinion that the Head of the Office for Foreigners did not consider the possibility of a public authority interference with family life under Article 8(2) of the echr. Therefore, the body failed to take account of the argu­ ments behind the complaint in which the claimant raised the issue of social ties as well as family ties to Poland. The alien emphasized that he had been residing in Poland since 1997, started a family and made friends who had been of great support to him. His relationship with the mother of the child, a Polish citizen, had broken down, but he stayed in touch with his daughter to whom he had a close, emotional connection, and he fulfilled his obligation to pay alimony. He also mentioned that for the last three years he had been in an informal relationship with a Polish citizen, whom he was planning to marry.71 The Supreme Administrative Court stressed that the fact that claimant had a minor daughter who had Polish citizenship should have been taken into consideration. Without a doubt “every minor needs close and regular contact with his parents. In such context, a body – considering the scope of parental authority of the alien towards his minor daughter, effective father-child relation­ ship and the alimony obligation that is incumbent upon the father – should decide whether the execution of expulsion order may result in irreversible con­ sequences, such as a daughter-father relationship breakdown.”72 The Court indi­ cated that there was also a need to consider the question of possible negative consequences of the expulsion of the claimant in the interests of the child.73 Bearing in mind the necessity to include Strasburg case law relating to fam­ ily, the Supreme Administrative Court clearly stated that one of the provisions under Article 8(2) of the echr – involving public authority interference in family life – does not in itself mean that such interference is required when a violation has been made by an alien.74 The case of Flaminnio C. being expelled from the territory of the Republic of Poland may serve as an example.75 The alien was married to a Polish citizen he had a child with. The married couple had been living in Poland for many years. The expulsion order was issued because of the fact that Flaminnio C. illegally transported 40 items of hunting ammunition across the Polish border. The Voivodeship Administrative Court decided that carrying such an amount of ammunition over the border violates the legal order and exhausts the grounds under Article 13, paragraph 71 Ibidem. 72 Ibidem. 73 Ibidem. 74 Judgment of the Supreme Administrative Court of 30 June 2005, No. II osk 554/05. 75 Ibidem. The expulsion order was issued on basis of the previous Act on Aliens of 25 June 1997, Polish Journal of Laws of 1997, No. 114, item 739.

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1(5) of the Act on Aliens of 25 June 199776 as well as proving that alien’s stay is undesirable for reasons of public order and policy. In his complaint to the Supreme Administrative Court, the alien claimed violation of substantive law, either by its misinterpretation or its wrong application, and of proceedings rules, which adversely affected the outcome of the proceedings. The Supreme Administrative Court considered the complaint and quashed the decision. The Court pointed to the fact that the only grounds for the expulsion decision was the fact of carrying of 40 items of hunting ammunition into Poland. The first instance court, when examining the legitimacy of the decision, did not take into consideration the normative wording resulting from Article 53 of the Act on Aliens of 25 June 1997. The regulation did not allow expulsion if it would breach the provisions of the echr, specifically Article 8. The first instance court carried out an extensive analysis of the criminal act committed by the claimant, but totally ignored his family situation. The Supreme Administrative Court in its judgment, revoked the principle of proportionality which requires not only analysis of the committed act and type of penalty, but also the personal and family situation, length of residence in Poland, possible obstacles to living with the family in the country of origin, as well as the conse­ quences of moving the family to a different country. The discussed issue of the protection of an alien against arbitrary expulsion was also dealt with by the Constitutional Tribunal, which, in its judgment of 15 November 2000 defined so-called “standards of care” which need to be upheld by public administrative bodies to avoid arbitrariness when deciding on the expulsion of an alien. According to the Constitutional Tribunal, before rendering such a decision, public administrative bodies shall – in the light of Article 77(1) of the cap – gather and examine all relevant evidential material. It means that the body is obliged to carefully examine the family situation of an alien, consider possible consequences of his expulsion on family members (children in particular) who are lawful residents in the territory of Poland and live with him in a family community, and other circumstances concerning the person who faces expulsion. Moreover, it has to analyse legal grounds for expulsion in terms of the purpose it was made.77 The Tribunal points out that 76

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Pursuant to Art. 13 para. 1(5) of the Act of 25 June 1997: “An alien shall be denied the issu­ ance of a visa, or he shall be denied entry into the territory of the Republic of Poland if there is a well-founded reason to suspect that he is transporting or carrying over the border, without the necessary permission, weapons, ammunition, explosives, radioactive materials or intoxicants or psychotropic agents, or is taking part in such an activity or is organizing it or is a member of an organization conducting such an activity.” Judgment of the Constitutional Tribunal of 15 November 2000, No. P 12/99; See also: judgment of the Supreme Administrative Court of 31 July 2001, No. V sa 501/01.

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“only after having analyzed all circumstances of a case, balancing constitu­ tional values which are in disharmony, can a proper decision be made. There is a need to assess the discussed values with much deliberation. The protection of the rights of a child and family life is of unique importance.”78 4 Conclusion In the light of the above considerations, it has to be admitted that Polish regu­ lations intend to accommodate the protection of State interests with guaran­ tees an alien has been granted to be protected against arbitrary expulsion. Analysis of legislation as well as Polish jurisprudence shows that standards within the Polish legal order relating to the protection against arbitrary expul­ sion in principle coincide with the universal and regional (European) human rights protection system. Nevertheless, while examining the Polish standard of protection against arbitrary expulsion, as J. Chlebny stresses, “one must always remember that according to the principle of subsidiarity it is always the duty of a national judge to make sure that the level of protection in the national court is not lower than that set by international human rights instruments. Making this level of protection possible, may sometimes be a challenge and require a lot of judicial activism.”79 Polish legislation ensures that administra­ tive acts such as an expulsion decisions can be controlled by the administra­ tive courts and set aside – or rebutted by exceptional remedy – if they prove arbitrary. What still leaves much to be desired, however, is the degree of awareness of administrative bodies and their negligence in proceedings considering expulsion of an alien. Case law clearly points to frequent violations of either substantive law affecting the outcome of the proceedings or proceedings rules that may affect the decision. The possibility to get acquainted with the materials collected in expulsion proceedings is a vital right which guarantees a party active involvement in the proceedings (Article 10 cap) while public administrative bodies are required to provide information to the parties regarding the factual and legal circum­ stances of the case (Article 9 cap). An alien who has not been notified of the content of collected materials cannot question it and, in consequence, cannot 78 Ibidem. 79 J. Chlebny, Standards of the provisional protection against expulsion (speech delivered at the seminar organized on the occasion of the publication of the Handbook on European Law relating to asylum, borders and immigration), Strasbourg, 11 June 2013, p. 2.

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claim his rights. Without a doubt the issue concerning access to case files, espe­ cially on grounds of State security (the State secret privilege) is complex and in certain situations may obstruct the proper course of justice. Although the decision not to give an alien free access to his files in expulsion proceedings is acceptable in strictly defined cases because of the protection of classified information, a “special advocate” should be involved as was established in Canadian Immigration Act. Consequently, the presence of such a person – who has the required government security clearance for accessing information which the government must keep confidential – will grant an alien a fair trial in which his interests are protected.

chapter 6

Responsibility of a State for Violating the Right of an Alien to be Protected against Arbitrary Expulsion 1 Introduction States Parties to treaties relating to international human rights are obliged to respect the legal status of aliens lawfully in their territory. A State which decides to expel an alien and infringes international obligations commits an internationally wrongful act and therefore bears responsibility for causing an injury to an alien for doing so.1 According to E.M. Borchard, expulsion should be effected with as little injury to the individual and his property interests, as unnecessary harshness might be considered a justification for a claim against the State which executed the expulsion.2 Moreover, in the legal doctrine is the view that before expulsion “an alien should be given a reasonable opportunity to dispose of property and assets, and permission to carry or transfer money and other assets to the country of destination; in no circumstances should the alien be subjected to measures of expropriation or be forced to part with property and assets.”3 In 1892, the Institute of International Law adopted a regulation stipulating that: “Deportation of aliens who are domiciled or resident or who have a commercial establishment in the territory shall only be ordered in a manner that does not betray the trust they have had in the laws of the State. It shall give them the freedom to use, directly where possible or by the mediation of a third party chosen by them, every possible legal process to settle their affairs and their interests, including their assets and liabilities, in the territory.”4 Deprived of such opportunity an alien may claim for damages. Therefore, this chapter 1 C. Amerasinghe, op. cit., pp. 38–41. 2 E.M. Borchard, The Diplomatic protection…, op. cit., pp. 59–60. 3 L. Sohn, T. Buergenthal, “The Movement of Persons Across the Borders,” Studies in Transnational Legal Policy, Vol. 23, Washington d.c., American Society of International Law, 1992, p. 96. 4 International Rules on the Admission and Expulsion of Aliens (Règles internationales sur l’admission et l’expulsion des étrangers), adopted by Institute of International Law in 1892, Art. 41.

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004265448_007

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presents the general scope and the content of the State’s responsibility for arbitrary expulsion and the type of reparation the alien is entitled to.5 2

Responsibility of a State for Arbitrary Expulsion in International Law

Analysing the issue of a State’s responsibility for arbitrary expulsion of an alien attention should be drawn to the Draft Articles of the International Law Commission on the “Responsibility of States for internationally wrongful acts.”6 The legal consequences of arbitrary expulsion of aliens are governed by the general regime of the responsibility of States for internationally wrongful acts. Under Article 2 of the Draft Articles “there is an internationally wrongful act of a State when conduct consisting of an action or omission is attributable to the State under international law; and constitutes a breach of an international obligation of the State.”7 Where the obligation stems from is, in fact, of little relevance.8 In other words, the drafted regulation specifies the conditions for a State’s act to be considered wrongful. It is widely assumed that a State as a subject of international law is held responsible for the conduct of all the organs, instrumentalities and officials which form part of its organization and act in that capacity, whether or not they have a separate legal personality under its internal law.9 As the Iran-United States Claims Tribunal has affirmed, “in order to attribute an act to the State, it is necessary to identify with reasonable certainty the actors and their association with the State.”10 Article 4 of the Draft Articles on the Responsibility of States for internationally wrongful acts specifies that the conduct of any State organ shall be considered an act of 5

6 7 8 9

10

The objective of this chapter is not to examine thoroughly the legal regime of responsibility applied in the case of arbitrary expulsion, but to present the basic rules and international jurisprudence. Text of Draft Articles on the Responsibility of States for internationally wrongful acts, adopted by International Law Commission at 53rd session of 2001. Art. 2, Text of Draft Articles on the Responsibility of States for internationally wrongful acts adopted by International Law Commission at 53rd session of 2001. A State may be responsible for breaching international treaty, customary law, unilateral engagement, or general rules of international law. Commentaries to the Draft Articles on Responsibility of States for internationally wrongful acts adopted by the International Law Commission at its fifty-third session (2001), Chapter II Attribution of conduct to a State, para. 7, p. 83. Yeager v. Islamic Republic of Iran, Iran-United States Claims Tribunal, Decision of 2 November 1987, at pp. 101–102.

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that State under international law, whether the organ exercises legislative, executive, judicial or any other function, whatever position it holds in the organization of the State, and whatever its character as an organ of the central government or of a territorial unit of the State.11 It can be read in the commentary that a “State organ” covers all the individual or collective entities which make up the organization of the State and act on its behalf. It encompasses an organ of any territorial governmental entity within the State on the same basis as the central governmental organs of that State.12 Furthermore, Article 5 of the Draft Articles deals with the attribution of the conduct of a State to bodies which are not State organs in the sense of Article 4, but which are nonetheless authorized to exercise governmental authority.13 The main aim of this provision is to take account of an increasingly common phenomenon of parastatal entities, which exercise elements of governmental authority replacing State organs, as well as former State corporations which have been privatized but retain certain public or regulatory functions. In some countries, for example, private security firms may be contracted to act as prison guards and in that capacity may exercise public powers such as powers of detention and discipline pursuant to a judicial sentence or prison regulations. Article 5 of the aforementioned draft explains that “the conduct of a person or entity which is not an organ of the State under Article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.”14 In other words, Article 5 is clearly limited to entities which are empowered by internal law to exercise governmental authority. Therefore, a State is responsible for acts and omissions of all State bodies: legislative, executive and judicial, whatever position 11 12

13

14

Art. 4 of the Draft Articles on Responsibility of States for internationally wrongful acts, adopted by International Law Commission at 53rd session of 2001. Commentaries to the Draft Articles on Responsibility of States for internationally wrongful acts, adopted by International Law Commission at 53rd session of 2001, Art. 4 para. 1, p. 40. Art. 5 of the Draft Articles on Responsibility of States for internationally wrongful acts, adopted by International Law Commission at 53rd session of 2001: “The conduct of a person or entity which is not an organ of the State under article 4 but which is empowered by the law of that State to exercise elements of the governmental authority shall be considered an act of the State under international law, provided the person or entity is acting in that capacity in the particular instance.” See: Commentaries to the Draft Articles on Responsibility of States for internationally wrongful acts, Art. 5 para. 1, p. 42. Text of Draft Articles on the Responsibility of States for internationally wrongful acts, adopted by International Law Commission at 53rd session of 2001.

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they hold in the organization of the State. Courts may breach the international law by applying existing domestic law without examining whether it violates international law or not; by wrong application of international law; and by failing to apply international law although the circumstances require so.15 The responsibility lies with a State also when a given body acted ultra vires. The Draft Articles of the ilc acknowledge that a State bears responsibility for acts of revolutionary groups and guerilla movements if they take control as a result of a revolution or a coup d’état. Arbitrary expulsion may stem from violation of the provisions of international treaties to which a State is party; international custom; or general principle of law recognized by civilized nations.16 Thus, a State bears responsibility when: • an expulsion decision has not been made in accordance with the law; • existing procedural guarantees are not respected; • it refuses to give reasons justifying an expulsion decision or its reasons are vague and indefinite, inconsistent with the admitted facts and unsupported by any proof; • the expulsion is carried out in an arbitrary manner, such as by using unnecessary force to effect the expulsion or by otherwise mistreating the alien or by refusing to allow him a reasonable opportunity to safeguard his property. The proposal submitted to the International Law Commission by its Special Rapporteur F. Garcia-Amador is also worth mentioning. His proposal holds a State responsible for injuries caused to an individual who was expelled from the country, if the expulsion decision was not based on grounds specified in domestic law or if, during the expulsion procedure, serious irregularities were committed.17 In literature, it has been stated that under international law, an alien who brings a claim against a State which bears the responsibility for wrongdoing 15 16

17

W. Czapliński, A. Wyrozumska, Prawo międzynarodowe publiczne. Zagadnienia systemowe, wydanie drugie, C.H. Beck, Warszawa 2004, p. 590. See: Art. 1 of the Commission’s articles on State responsibility and Art. 38 para. 1 a, b, c of the Statute of the International Court of Justice: “The Court, whose function is to decide in accordance with international law such disputes as are submitted to it shall apply: a) international conventions, whether general or particular, establishing rules expressly recognized by the contesting States; b) international custom, as evidence of a general practice accepted as law; c) the general principles of law recognized by civilized nations; (…).” F. Garcia-Amador, “Sixth Report on the State Responsibility,” Yearbook of the International Law Commission, 1961, Art. 5 para. 1.

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shall prove that the conduct was unlawful, was attributable to this particular State, and caused an injury.18 The case of expulsion of us citizens during the Islamic Revolution under Ayatollah Khomeini in Iran in 1979 can serve as an example.19 The Iran-United States Claims Tribunal examined claims brought by American citizens considering their arbitrary expulsion and restitution. Yeager v. Iran, in which a us citizen claimed damages for arbitrary expulsion from the territory of Iran, can be mentioned. The Revolutionary Guards (who did not formally constitute an Iranian authority body and were not formally its agents), carried out functions in immigration administration during the chaotic times after the Revolution when the new government was unable to fulfil its duties.20 The Iran-United States Claims Tribunal stated that Yeager was unlawfully expelled because the acts of the Revolutionary Guards breached the Treaty of Amity between Iran and the usa as well as general principles of international law. The Treaty of Amity provided that us nationals may be expelled only if necessary to protect the public interest of Iran. In the Tribunal’s opinion, an expulsion of the us citizen was not justified, in that case, as constituting a threat to public interest of the Islamic Republic. The Tribunal also pointed to the fact that the claimant was not granted sufficient time to wind up his affairs. The Tribunal further stated that: “A claimant alleging expulsion has the burden of proving the wrongfulness of the expelling State’s action, in other words that it was arbitrary, discriminatory, or in breach of the expelling State’s treaty obligations.” Therefore, the Tribunal decided that Iran bears responsibility for acts of the Revolutionary Guards who made a us citizen leave Iran. The Tribunal, 18 19

20

R.L. Cove, “State Responsibility for constructive wrongful expulsion of foreign nationals,” Fordham International Law Journal, Vol. 11, 1988, p. 815. The Revolution of 1979 led to replacing the constitutional monarchy in Iran with an Islamic republic and the overthrow of Shah Mohammad Reza Pahlavi by the supporters of Ayatollah Ruhollah Khomeini. The outbreak and the scale of the Revolution in Iran surprised the us administration. In November 1979 a group of Iranian students invaded the building of us Embassy in Teheran. It was occupied for months and about 50 hostages were held, most of whom were diplomatic and consular staff of the mission. Yeager v. Islamic Republic of Iran, Iran-United States Claims Tribunal, Decision of 2 November 1987. A us citizen, Yeager, was in Iran on a two-year contract. He claimed that since the beginning of October 1987 us nationals were threatened by Ayatollah Khomeini, resulting in their expulsion. He also affirmed that he and his wife were constantly tormented by neighbours who would say that “problems were yet to come”. On 13 February 1979 two armed men, identified as the Revolutionary Guard, came to his house and ordered them to leave the flat in thirty minutes. They were taken to a hotel and ordered to stay there until leaving Iran on 17 November 1979. They were additionally searched at the airport by the Guards who took all the money they had with them.

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moreover, stated that the Islamic Republic is held responsible for having deprived the alien of a reasonable opportunity to protect his property interests prior to his expulsion and all losses the claimant suffered as a result of arbitrary expulsion. These were property losses as Yeager was forced to leave everything, including the cash he was deprived of at the airport. The above-mentioned judgment of International Court of Justice in Ahmadou Sadio Diallo can serve as another example of the importance of the responsibility of a State for arbitrary expulsion.21 The Court found the Democratic Republic of the Congo responsible for committing an internationally wrongful act in form of arbitrary expulsion of Ahmadou Sadio Diallo. The Court decided that the Democratic Republic of the Congo was under an obligation to make appropriate reparation, in the form of compensation, to the Republic of Guinea for the injurious consequences of the violations of the human rights obligations under Articles 9 and 13 of the International Covenant on Civil and Political Rights.22 The Court indicated that the amount of compensation was to be based on “the injury flowing from the wrongful detentions and arbitrary expulsion of Mr. Diallo in 1995–96, including the resulting loss of his personal belongings.”23 The Court recalls that “reparation must, as far as possible, wipe out all the consequences of the illegal act and reestablish the situation which would, in all probability, have existed if that act had not been committed.”24 Guinea sought compensation under four categories of overall damage: nonmaterial injury (referred to by Guinea as “mental and moral damage”) and three categories of material damage: alleged loss of personal property (including assets in bank accounts), alleged loss of professional remuneration (referred to by Guinea as “loss of earnings”) during Mr Diallo’s detentions and after his arbitrary expulsion, and alleged deprivation of “potential earnings.” As to each category of damage, the Court had to consider whether an injury had been established and to ascertain “whether, and to what extent, the injury asserted by the Applicant is the consequence of wrongful conduct by the Respondent,” taking into account “whether there is a sufficiently direct and certain causal nexus between the wrongful act (…) and the injury suffered by the Applicant.”25 Guinea contended that “Mr. Diallo suffered moral and mental 21 22 23 24 25

Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment of International Court of Justice of 30 November 2010. Ibidem, para. 160. Ibidem, para. 163. Ibidem, para. 161. Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), International Court of Justice, Judgment of 19 June 2012 Compensation owed by the Democratic Republic of the Congo to the Republic of Guinea, para. 14.

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harm, including emotional pain, suffering and shock, as well as the loss of his position in society and injury to his reputation as a result of his arrests, detentions and expulsion by the drc,”26 but no specific evidence regarding this category of damage was submitted by Guinea. However, the Court noted a link between Mr Diallo’s expulsion and the fact that he had attempted to recover debts which he believed were owed to his companies by, amongst others, the Zairean State or companies in which the State holds a substantial portion of the capital.27 Finally, with regard to the non-material injury suffered by Mr Diallo, the Court considered that the amount of usd 85,000 would provide appropriate compensation, and in respect of material injury caused to Mr Diallo as a result of the Democratic Republic of the Congo’s unlawful conduct, the Court awarded compensation to Guinea in the amount of usd 10,000. In light of this, a State bears responsibility for the arbitrary expulsion of an alien, namely if this act is attributable to the State and violates its duties stipulated in international human right treaties. Therefore, a State should exercise its power to expel in good faith and not for some ulterior motive, such as discrimination, expropriation or the surrender of an individual to persecution. 3

Reparation for Arbitrary Expulsion of an Alien

State responsibility for an internationally wrongful act, the arbitrary expulsion of an alien, entails reparation, namely the obligation to redress the damage.28 An expelled alien may claim reparation of damage caused by arbitrary expulsion both in domestic and international courts. The right of an alien to claim reparation from a State for the injury caused by internationally wrongful act the State is responsible for has been enshrined in Draft Articles of the International Law Commission on Responsibility of States. Article 31 of the Draft of ilc states that the “responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.”29 If a State ordered an arbitrary expulsion, an 26 27 28

29

Ibidem, para. 19. Ibidem, para. 23. Reparations – measures taken by one State towards another State or international organization to redress a wrong, injury and loss caused because of violation of international law. Reparations can also involve re-establishing the situation which existed before. Draft Articles on Responsibility of States for internationally wrongful acts, adopted by International Law Commission at 53rd session of 2001.

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alien is entitled to reparation in form of a restitution (re-establishing the situation which existed before/restitution in integrum), compensation and satisfaction.30 The purpose of reparation for arbitrary expulsion of an alien is to mitigate or indemnify for injuries or financial damage he suffered. The right of an expelled alien to have his injuries compensated emerges, M. Whitemann writes, “when an expelling State exercises its right to expel persons in an arbitrary or harsh manner, far from standards adopted by civilized countries or contrary to treaty provisions.”31 When defining the scope of damage for arbitrary expulsion, the following criteria need to be assessed: expenses incurred by the victim because of a change in place of living, property losses, break-in business activities, number of persons supported by the alien, humiliation to which the victim was subjected upon expulsion, and affront to the country of his origin.32 Nevertheless, a distinction must be made between cases in which a State decides to invoke diplomatic protection and take international legal action on behalf of its citizen, and those in which an individual suffering arbitrary expulsion lodges a complaint against the State which violated his right to be protected against arbitrary expulsion. If a claim for reparation of injuries caused by arbitrary expulsion is carried out within diplomatic protection, the reparation is paid to the State which claims damages for its national. International law does not oblige the State to pay the reparation to the individual whose rights were violated.33 In the light of Article 2(3) of the iccpr, each State Party to the Covenant has an obligation to ensure that an alien whose right to be protected against arbitrary expulsion was violated shall have an effective remedy. The Human Rights Committee states in General Comment No. 31 “that where appropriate, reparation can involve restitution, rehabilitation and measures of satisfaction, 30

31 32 33

Ibidem, Art. 34. Moreover, it needs to be mentioned that in Resolution of 16 December 2005 on Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights and Law and Serious Violations of International Humanitarian Law adopted by un General Assembly, it was held that all States shall take appropriate measures to prevent violations of human rights, take action against those responsible, investigate violations effectively, and provide effective remedies to victims of violations. States shall adopt appropriate and effective procedures in their legal systems so that international human rights are respected. Reparation includes restitution, compensation, rehabilitation of a victim, satisfaction and guarantees of non-repetition. M. Whitemann, Damages in International Law, Vol. I, 1936, p. 419. Ibidem, p. 513. W. Czapliński, A. Wyrozumska, op. cit., p. 596.

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such as public apologies, public memorials, guarantees of non-repetition and changes in relevant laws and practices, as well as bringing to justice the perpetrators of human rights violations.”34 It needs to be noted, however, that initially, the Human Rights Committee limited itself to state that there had been a violation of the rights of an individual, with no reference to the way reparation should be made.35 However, such an approach soon changed. M. Nowak points out that in most cases in which there is a violation of rights under the iccpr, the Committee indicates the most appropriate legal measures a State Party can take to award an alien a reparation.36 The Committee does not specify the sum of money that should be paid to the victim and leaves it to the State Party to decide.37 In Alzery v. Sweden, the Committee held that the State Party is under an obligation to provide the alien with an effective remedy, including compensation. Pursuant to Article 41 of the European Convention on Human Rights: “if the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.” It has been held that the purpose of reparation is to compensate for any negative consequences suffered by the injured individual as a result of the echr violation made by the State. Just satisfaction involves compensation for pecuniary and non-pecuniary damage, as well as costs and expenses of proceedings before the Court.38 The quoted provision says that it is not obligatory for the ECtHR to award compensation. As R. Degener emphasizes, the Court is free to decide whether there is a need to make any award at all.39 The case law of the Court shows, however, that awarding compensation has become an almost automatic consequence of violating the echr. The awards are mostly monetary. The Court sets the sum of money, time of payment and orders default interest to be paid in the event of delay. Sometimes the Court refuses to award just satisfaction in the form of 34 35

Human Rights Committee, General Comment No. 31 of 29 March 2004, para. 16. K. Sękowska-Kozłowska, “Ewolucja funkcji orzecznictwa organów traktatowych onz w dziedzinie praw człowieka,” in B. Guzik, N. Buchowska, P. Wiliński (eds.), Prawo wobec wyzwań współczesności, vol. VI, Poznań 2010, p. 114. 36 M. Nowak, u.n. Covenant…, op. cit., p. 70. 37 K. Sękowska-Kozłowska, op. cit., p. 115. 38 R. Degener, “Art. 41 [Słuszne zadośćuczynienie],” in L. Garlicki (ed.), Konwencja o Ochronie Praw Człowieka i Podstawowych Wolności. Tom II. Komentarz do artykułów 19–59 oraz do protokołów dodatkowych, C.H. Beck, Warszawa 2011, p. 268. 39 Ibidem.

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sum of money, as it claims that acknowledging the violation is a compensation in itself. What is more, under Article 46 of the Convention, the Committee of Ministers of the Council of Europe supervises the execution of the judgment of the Court.40 The body makes sure that the State makes payment in due time. In the event of delay, the Committee determines the interest owed to the victim. 3.1 Types of Reparation 3.1.1 Restitution Restitution involves re-establishing the situation which existed before (status quo ante) the wrongful act was committed.41 Although it is considered one of the most basic forms of awarding a reparation, it is not commonly applied in expulsion cases. It can be applied when, as a result of arbitrary expulsion, an expelling State interfered with the movable or immovable property of an alien. If, because of arbitrary expulsion, an alien lost his movable or immovable goods owned in the expelling State, he may claim to have his property returned. A similar situation can be observed if an alien’s property has been damaged as a result of arbitrary expulsion. An alien may then claim reparation by re-establishing the situation which existed before (restitution in integrum) and the State responsible for the arbitrary expulsion must restore the damaged property and interests of an alien to their previous state, although not 40

41

Pursuant to Art. 46 of the echr: 1. The High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties. 2. The final judgment of the Court shall be transmitted to the Committee of Ministers, which shall supervise its execution. 3. If the Committee of Ministers considers that the supervision of the execution of a final judgment is hindered by a problem of interpretation of the judgment, it may refer the matter to the Court for a ruling on the question of interpretation. A referral decision shall require a majority vote of two thirds of the representatives entitled to sit on the committee. 4. If the Committee of Ministers considers that a High Contracting Party refuses to abide by a final judgment in a case to which it is a party, it may, after serving formal notice on that Party and by decision adopted by a majority vote of two thirds of the representatives entitled to sit on the committee, refer to the Court the question whether that Party has failed to fulfil its obligation under paragraph 1. 5. If the Court finds a violation of paragraph 1, it shall refer the case to the Committee of Ministers for consideration of the measures to be taken. If the Court finds no violation of paragraph 1, it shall refer the case to the Committee of Ministers, which shall close its examination of the case. R. Bierzanek, J. Symonides, op. cit., p. 158. See also: D. Shelton, Remedies in International Human Rights Law, second ed., Oxford University Press, 2006, p. 65.

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necessarily an identical one. The property, however, should regain its utility and aesthetic value to meet the needs and requirements of the victim. If re-establishing the previous situation is impossible, an alien may claim financial damages. Such cases are common when restitution cannot be made for the damage (damage to a unique item) or is impossible because of existing laws. 3.1.2 Compensation According to E.M. Borchard, expelling an alien without cause has been held to afford a good claim for indemnity.42 Compensation is the most common form of reparation for arbitrary expulsion.43 Driven by protection of the interests of a victim is the possibility to repair damage by paying a certain sum of money, or giving an equivalent to balance material damage as a result of arbitrary expulsion. When arbitrarily expelled, an alien may suffer pecuniary and non-pecuniary damage which entail moral and material losses. The Inter-American Court of Human Rights stated that pecuniary damage involves the loss of or detriment to the victim’s income and the expenses incurred as a result of the court case.44 Non-pecuniary damage, on the other hand, involves the suffering or affliction an alien has been caused as a result of the expulsion. It also encompasses injury to his dignity or a deterioration in previous living conditions. In such situations, however, it is difficult to assess a precise monetary equivalent to damage suffered and therefore award adequate compensation. It should be noted that affliction involving physical or psychological suffering cannot be compensated for by means of monetary payment, but can ease the pain of the victim by awarding him a sum of money that would satisfy his needs. As has already been mentioned, arbitrary expulsion, in many cases, may contribute to interruption of life plans of an alien in the State of his residence where his private and professional life was evolving.45 In particular, when the person has already commenced certain activities in the host State: he is studying, starting a family or has economic activities. Relating to the injuries suffered by infringement of human rights, the Inter-American Court of Human Rights took a new look at the issue concerning compensation for interruption of his life plans. In its judgment in Loayza-Tamayo, the Court made a distinction between pecuniary damage quantifiable according to economic criteria and 42 43 44 45

E.M. Borchard, The Diplomatic Protection…, op. cit., p. 57. G.S. Goodwin-Gill, International Law…, op. cit., pp. 278–280. See also: D. Shelton, op. cit., p. 65. Inter-American Court of Human Rights, Bámaca-Velásquez v. Guatemala, Series C, No. 91, Judgment of 22 February 2002. M. Kamto, Sixth report on the expulsions of aliens, International Law Commission Sixtysecond session Geneva, 3 May – 4 June and 5 July – 6 August 2010, A/CN.4/625/Add.2, p. 73.

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the interruption of the life plan, stating that the concept of a “life plan” is similar to the concept of personal fulfilment, which is based on the assumption that an individual may lead his life and achieve the goals he sets for himself. It stems from personal freedom.46 The Court holds that “the damage to the ‘life plan’, understood as an expectation that is both reasonable and attainable in practice, implies the loss or severe diminution, in a manner that is irreparable or reparable only with great difficulty, of personal prospects of self-development.”47 In this case, the claimant, a Peruvian citizen, was arbitrarily detained and subjected to inhuman treatment to be finally ordered to leave the country of her origin and live abroad in harsh economic conditions. The activity of Peruvian authorities caused irreparable harm to her life, making her interrupt her studies, live alone and in poverty in a foreign country, subject to physical and psychological suffering. Leaving Peru prevented her from achieving her goals for personal and professional growth. In fact, she experienced social exclusion.48 The Court held that the Peruvian authorities damaged the life plans of Ms. Loayza-Tamayo by infringing the human rights she was entitled to. Nevertheless, the Court emphasized that so far both the doctrine and case law presented the view that damage to life plans of an individual cannot be translated into economic terms. Finally, the Court refrained from quantifying the damage and only awarded the victim symbolic reparation.49 Arbitration tribunals, on several occasions, have awarded compensation to aliens who fell victim to arbitrary expulsion because of the fact that they were not informed of the reasons for their expulsion or were detained for too long prior to expulsion. In Paquet, it was stated that arbitrary expulsion of a Belgium citizen, N. Paquet, by Venezuelan authorities called for a compensation for damage suffered.50 In Maal, the judge also awarded compensation to an alien who suffered inhuman treatment by Venezuelan authorities.51 The claimant, a Dutch citizen, came to Venezuela on business, as a representative of important American and European enterprises. When already in Venezuela, he was unexpectedly arrested and subjected to much humiliation on the part of 46 47 48 49 50 51

Inter-American Court of Human Rights, Loayza-Tamayo v. Peru (Reparations), Series C, No. 42, Judgment of 27 November 1998, para. 148. Ibidem, para. 150. Ibidem, para. 152. Ibidem, para. 153. Paquet (Mixed Claims Commission Belgium-Venezuela), 1903, United Nations Reports of International Arbitral Awards, Vol. IX, p. 325. Maal (Mixed Claims Commission Netherlands-Venezuela), 1903, United Nations Reports of International Arbitral Awards, Vol. X, pp. 707–733.

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police officials. He was then informed by Venezuelan authorities that he was suspected of espionage, on which grounds he was expelled. As a result, the alien suffered significant pecuniary and non-pecuniary damage (i.e. the humiliation he experienced, the delay of his anticipated trip to Europe and the loss of much money). The accusation was groundless, so the judge held that the Government of Venezuela should pay him compensation, a sufficient sum to express its appreciation of the indignity practiced upon him. The judge noted that expulsion must be exercised with due regard to the convenience and the personal and property interests of the person to be expelled. Compensation for non-pecuniary damage suffered as a result of arbitrary expulsion has been also awarded on numerous occasions by the European Court of Human Rights. In the above-mentioned judgment in Moustaquim v. Belgium, the alien was granted compensation in the amount of bef 100,000 as reparation for having to live far away from his family and friends, in a country where he had no ties or connections.52 Likewise in Lupsa v. Romania, the ECtHR awarded the applicant eur 15,000 in respect of pecuniary and nonpecuniary damage he suffered on expulsion.53 3.1.3 Satisfaction Satisfaction is another form of reparation which can be applied in cases of arbitrary expulsion.54 Although international law does not regulate this form of reparation, it has been stated in the doctrine that satisfaction mostly involves a formal apology, an expression of regret, charging and punishing the guilty ones, taking necessary measures to prevent further damage or paying a symbolic sum of money.55 Satisfaction can serve to emphasize the unlawful act or negligence. Moreover, it is commonly held that the judgment of an international court itself may be, at times, recognized as a form of satisfaction. The us Secretary of State, E. Root, stated that “the right of a government to protect its citizens in foreign parts against a harsh and unjustified expulsion must be regarded as a settled and fundamental principle of international law. It is no less settled and fundamental that a government may demand satisfaction and indemnity for an expulsion in violation of the requirements of international law.”56 In this regard, the Special Rapporteur, F. García-Amador 52 53 54 55 56

ECtHR 18 February 1991, Moustaquin v. Belgium, Application No. 12313/86. ECtHR 8 June 2006, Lupsa v. Romania, Application No. 10337/04. R. Bierzanek, J. Symonides, op. cit., p. 158. W. Czapliński, A. Wyrozumska, op. cit., p. 609. Ch. Hyde, International Law Chiefly as Interpreted and Applied by the United States, Vol. 1, second ed., Boston 1947, p. 231.

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pointed out that in cases of arbitrary expulsion, satisfaction has been given in the form of revocation of the expulsion order and the return of the expelled alien.57 He referred to the cases of Lampton and Wiltbank. These concerned two us citizens expelled from Nicaragua in 1894 and four British citizens who had also been expelled from the same country. In the first case, the us citizens were permitted to return upon request of the United States. In the latter, however, Great Britain demanded of Nicaragua the unconditional revocation of the decrees of expulsion, to which Nicaragua did not agree, stating that these persons were guilty of taking part in local rebellion.58 Satisfaction, as a form of reparation, is particularly applicable in situations when an expulsion order has already been taken, but not yet exercised. The European Court of Human Rights stated that a judgment which shows the unlawfulness of a decision constitutes sufficient satisfaction. The Chahal v. The United Kingdom, Ahmed v. Austria and Beldjoudi v. France cases need to be quoted here to illustrate that the Court awarded no compensation as it held that judgment of a violation of the echr should be a fair satisfaction to the applicants.59 4 Conclusion Human rights instruments exhort States to make their best efforts not to expel an lawful alien in an arbitrary manner. However, a State which expels an alien in breach of the provisions of international human rights law incurs international responsibility. That responsibility may be established following legal proceedings initiated by the State whose national is expelled, in the context of diplomatic protection, or by the alien who is entitled to submit an application to the ECtHR or submit a communication to the hrc, claiming that he is a victim of a violation by the State of the rights set forth in the Convention or Covenant respectively. Moreover, compensation for injuries caused by an arbitrary expulsion may be received by an alien, since these treaty bodies, as charged with enforcing human rights conventions, frequently oblige the defaulting State to make reparation for such an injury. 57

F. Garcia-Amador, L. Sohn, R. Bexter, Recent Codification of the Law of State Responsibility for Injuries to Aliens, Oceana Publications, inc., 1974, pp. 108–109, para. 99. 58 Ibidem. 59 ECtHR 15 November 1996, Chahal v. The United Kingdom, Application No. 22414/93, para. 158; ECtHR 17 December 1996, Ahmed v. Austria, Application No. 25964/94, para. 51; ECtHR 26 March 1992, Beldjoudi v. France, Application No. 12083/86, para. 158.

Conclusion This book has examined the way the protection of a lawful alien against arbitrary expulsion is carried out in the light of international human rights law. This required a thorough analysis and reconstruction of a right of an alien to be protected against arbitrary expulsion guaranteed by universal and regional systems of human rights. The results are as follows. International human rights law plays a key role in enhancing the protection of aliens against arbitrary expulsion, since the nature of human rights law is based on the assumption that human rights apply to everyone, irrespective of nationality or statelessness, because of the inherent dignity of every human being. States no longer enjoy absolute and uncontrolled discretion in expelling lawful aliens. Thus, the discretion to make the expulsion order has to be exercised fairly and proportionately. In the last few years, an ongoing development to strengthen the protection against arbitrary expulsion in case law of the European Court of Human Rights and the Human Rights Committee, in particular, can be observed. Bearing in mind that strong protection against arbitrary expulsion is one of the necessary conditions for a successful integration, new cases pending before the ECtHR show that increasing stabilization of the rights of third country nationals who are long-term residents can be expected. Both universal and regional conventions on human rights contain a number of procedural safeguards with regard to the expulsion of aliens. Article 13 of the International Covenant on Civil and Political Rights, Article 1 of Protocol No. 7 to the European Convention on Human Rights, Article 22(6) of the American Convention on Human Rights and Article 12(4) of the African Charter of Human and Peoples’ Rights provide that aliens who have been lawfully residing in a State may only be expelled if such an expulsion is provided for in national legislation, which determines who is to make the decision, the procedure the administrative body is to follow and the grounds for expulsion. It should be stressed that the international regulations do not challenge the right of a State to expel an alien, but they do specify protective measures and limitations which help to eliminate arbitrariness as far as expulsion of aliens is concerned. The expulsion decision cannot be summary and must follow careful deliberation through full and fair proceedings in which the alien is legally represented and is entitled to submit extensive arguments and to have his case reviewed. Nevertheless, regardless of what has been guaranteed under international human rights law, in practice aliens have to struggle with the numerous obstacles they come across in a host State. In most cases States Parties fall

© koninklijke brill nv, leiden, 2015 | doi 10.1163/9789004265448_008

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short of providing an alien with any factual grounds given for the expulsion, any form of adversarial proceedings and any effective possibility of appealing to an independent authority competent to consider the expulsion decision. An expulsion decision has to be made in accordance with law, in line with careful and just legal procedures, and with due regard to acceptable international norms and standards. The law is required to protect aliens from arbitrary conduct by domestic authorities, by affording them the chance to have the disputed measure examined by an independent and impartial body, empowered to consider all relevant information readily available to them. Furthermore, all expulsion decisions should be subject to judicial review, which means that judicial bodies should also be in a position to review all of the legal and factual issues relevant to an expulsion case presented by the parties, including lack of competence, procedural impropriety and abuse of power, and pay attention to the need to apply the rules of a fair trial. The effective judicial review of expulsion decisions is an essential element of the system of protection of human rights. States Parties to the discussed human rights treaties should ensure that the application of anti-terrorism legislation does not lead to depriving aliens of their procedural guarantees against arbitrary expulsion. The notion of national security is very wide and a large margin of appreciation is, however, left to the national authorities to determine what is in the interest of that security. Threats to national security may vary in character and may be unanticipated or difficult to define in advance. The European Court of Human Rights has reiterated that independent courts must be able to react in cases where a national authority invokes a threat that an alien poses to national security with no reasonable basis in fact or reveals an arbitrary interpretation of national security. The argument that a lawful alien poses a serious threat to national security or public order of the State as a reason to expel him cannot be based on vague, unproven and anonymous allegations or unspecified information contained in a secret internal document. If the State fails to reveal the facts which serve as a basis for such assessment, an alien is not able to present his case adequately and enjoy his right to a defence. It should be explicitly stressed that the execution of the right to defence is possible when an alien is familiar enough with the grounds for his expulsion to be able to present his case and try to challenge the findings made by authorized bodies. Therefore, an alien must be able to challenge the executive’s assertion that national security is at stake. In order to weigh the opposing interests of a State and an alien facing expulsion, the State should provide a regulation which enables to maintenance of confidential State security data and the right of an expelled person to be protected against arbitrary expulsion. Hence, domestic law should prescribe the institution of a

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special advocate with access to case files classified as confidential because of national security. Such a person is not the alien’s counsel, but an independent lawyer whose task is to protect the interests of the foreign national in expulsion proceedings when information or other evidence is heard in the absence of the person concerned and their counsel. It should be emphasized that even if the lawful alien is deprived of his procedural rights in the light of universal and regional conventions, further protection against arbitrary expulsion is provided by specific substantive rights, such as the right to respect for family and private life, the right not to be expelled from one’s own country, principle of non-discrimination and principle of non-refoulement. Due to the fact that expulsion of lawful aliens may have irreversible consequences, the Human Rights Committee, European Court of Human Rights and Court of Justice of the European Union introduced a mechanism to protect against arbitrary expulsion based on the principle of proportionality. Domestic authorities are obliged to consider whether it is necessary to expel a lawful alien and consequently destroy their family or private life. International jurisprudence, the extensive case law of the European Court of Human Rights in particular, has specified factors militating against a lawful alien’s expulsion, such as the length of stay, integration, the family and professional situation, the absence of any prior criminal convictions and the lack of ties with his country of origin. While the European Court of Human Rights has referred to the need to take account of the circumstances of a particular case, it observes that, in practice, the factors to be examined in order to assess the proportionality of the expulsion measure are the same regardless of whether family or private life is affected. The life situation of an alien who spent most of his life in the host country is far different from an individual who came for a short period of time, merely because of the fact that the person in question has developed strong emotional and personal ties with the country of their residence which is their de facto homeland. International case law points to the consequences of expulsion for family members, as such an act may result in the breakdown of family life. Much controversy has also been raised by unequal treatment of aliens/offenders who are second-generation immigrants. In such cases, the European Court of Human Rights judges postulate a more “liberal” and favourable approach towards this category of aliens. Although some decisions of the Human Rights Committee and judgments of the European Court may raise doubts, taking into account dissenting opinions of their members, it should be acknowledged that rights enshrined both in the International Covenant on Civil and Political Rights and the European Convention on Human Rights make the protection of aliens against arbitrary expulsion real and effective.

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Following the views of the International Law Commission and the representatives of legal doctrine, when a State resorts to expelling an alien, human rights should be respected. In the event of infringement of the protection against arbitrary expulsion on the part of a State, an alien may claim compensation from that State. A State which decides on expulsion of an alien inconsistent with international obligations commits an internationally wrongful act and, as a result, bears responsibility for any damage the expelled alien suffers. What is more, aliens can take the initiative themselves in having the State’s expulsion decision reviewed by international tribunals. Although this book has mostly dealt with the protection of lawful aliens against arbitrary expulsion in the light of international law, the example of Poland has been given to illustrate emerging problems at national level. It was shown that lawful aliens residing in the territory of Poland are also entitled to be protected against arbitrary expulsion, as has been enshrined in international law. In the event of expulsion they enjoy domestic procedures as well as legal measures they can resort to before international bodies. Administrative bodies, when deciding on expulsion, are obliged to consider international treaties that are binding on the Republic of Poland. The influence that international standards concerning the protection of aliens against arbitrary expulsion have over interpreting domestic law is best manifested in the case law of administrative courts. The most common fault committed by Polish administrative bodies, as was shown, is not to take into account the personal and family situation of an alien. Moreover, decisions regarding expulsion expose faults that stem from inappropriate application and interpretation of the provisions of substantive law and lack of reliable and thorough examination of the facts. As has been presented in this book, the right of an alien to be protected against arbitrary expulsion and the rights and duties of the State – within the discussed area – are defined by an interactive relationship between national, European and international treaty law. It can be said that effective protection of an alien requires a balance between the rights of States which have sovereignty over the admission and expulsion of aliens, and the rights of the aliens subject to expulsion. Finally, one has to bear in mind that international human rights law is very dynamic. Hence, it is of great importance that international tribunals – as C. Trindade emphasized – “provide avenues not only for States, but also for human beings, everywhere, and in respect of distinct domains of international law, to recover their faith in human justice.”1 1 Ahmadou Sadio Diallo (Republic of Guinea v. Democratic Republic of the Congo), Judgment of the Court of International Justice of 30 November 2010, separate opinion of Judge C. Trindade, para. 245.

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Advisory Opinions of the Inter-American Court of Human Rights

Advisory Opinion OC-9/87 of October 6, 1987, Judicial Guarantees in States of Emergency, Series A, No. 9. Advisory Opinion OC-17/02 of August 28, 2002, Cf. Legal Status and Human Rights of the Child, Series A, No. 17. Advisory Opinion OC-18/03 of September 17, 2003, Juridical Condition and Rights of the Undocumented Migrants, Series A, No. 18. Advisory Opinion OC-16/99 of October 1, 1999, The Right to Information on Consular Assistance in the Framework of the Guarantees of the Due Process of Law, Series A, No. 16.

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Anna Maroufidou v. Sweden, Communication No. 58/1979, decision of 9 April 1981. Shirin Aumeeruddy-Cziffra and 19 other Mauritian women v. Mauritius, Communication No. 35/1978, decision of 9 April 1981. M.A. v. Italy, Communication No. 117/1981, decision of 21 September 1981. Hammel v. Madagascar, Communication No. 155/1983, decision of 3 April 1987. Pierre Giry v. Dominicana, Communication No. 193/1985, decision of 20 July 1990. Kindler v. Canada, Communication No. 470/1991, decision of 18 November 1993. Chitat Ng v. Canada, Communication 469/1991, decision of 7 January 1994. Mukong v. Cameroon, Communication No. 458/1991, decision of 21 July 1994. Stewart v. Canada, Communication No. 538/1993, decision of 1 November 1996. Canepa v. Canada, Communication No. 558/1993, decision of 3 April 1997. Winata v. Australia, Communication No. 930/2000, decision of 16 August 2001. C. v. Australia, Communication No. 900/1999, decision of 28 October 2002. Judge v. Canada, Communication No. 829/1998, decision of 5 August 2003. Ahani v. Canada, Communication No. 1051/2002, decision of 29 March 2004. Ronald Everett v. Spain, Communication No. 961/2000, decision of 9 July 2004. Benjamin Ngambi i Marie-Louise Nebol v. France, Communication No. 1179/2003, decision of 9 July 2004. Francesco Madafferi and Anna Maria Immacolata Madafferi v. Australia, Communication No. 1011/2001, decision of 26 July 2004. Jonny Rubin Byahuranga v. Denmark, Communication No. 1222/2003, decision of 9 December 2004. Alzery v. Sweden, Communication No. 1416/2005, decision of 25 October 2006.

Mutombo v. Switzerland, Communication No. 13/1993, decision of 27 April 1994. Khan v. Canada, Communication No. 15/1994, decision of 15 November 1994. Tapia Paez v. Sweden, Communication No. 39/1996, decision of 28 April 1997. Josu Arkauz Arana v. France, Communication No. 63/1997, decision of 9 November 1999. A.S. v. Sweden, Communication No. 149/1999, decision of 24 November 2000.

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Index Accessibility  118 Acquired rights  29, 42 Administrative proceedings  126, 130, 132, 142, 164, 169, 176, 178 Administrative act  124, 131–132, 137, 182 Adversarial proceedings  131, 146, 162, 172, 199 African Charter of Human and Peoples’ Rights  18, 137, 198 African Commission on Human and Peoples’ Rights  XI, 19, 20, 39, 46, 117–118, 127, 133, 134, 137 American Convention on Human Rights  18, 32, 35, 42, 46, 86, 94, 124, 151, 198 Arguable claim  144–145, 149 Alienage  42, 87 Appeal  53, 61, 69, 75, 127–128, 132–135, 140, 143–144, 146–148, 154–155, 158, 161–162, 166–169, 173–174, 199 Appropriate limitations  172 Arbitrariness  37–38, 50–51, 61, 79, 115, 118, 120–121, 133, 140, 161, 181, 198 Arbitrary expulsion  1–2, 4, 6, 8–9, 12–13, 15, 18, 20, 23–24, 26, 28–31, 33–34, 37, 39–40, 45–46, 48, 51–52, 62, 80, 84–85, 91–92, 95, 108, 112–115, 119–120, 137, 139, 149, 151, 155, 158–159, 161–164, 169, 174, 177–178, 181–182, 184–185, 187–191, 193–201 Arbitrary uprooting  113 Arbitration tribunals  195 Attorney-in-fact  178 Boultif criteria  70–72, 77 Case-by-case approach  66 Classified information  171–172, 183 Code of Administrative Procedure  166– 167, 169, 177 Collective expulsion  XVII, 17–20, 90 Committee Against Torture  XIV, 99–101, 111, 113, 135

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment  93, 95, 98 Convention Relating to the Status of Refugees  XIII, 9–12, 34, 92, 95–98, 102, 104, 113, 118, 122, 135, 136–137, 139 Convention Relating to the Status of Stateless Persons  11, 118 Compensation  8, 28, 145, 189–197, 201 Council of Europe  XIII, 4, 6, 7, 19, 35–36, 47, 72, 94, 109, 120, 132, 147–148, 193 Consular officer  157 Counsel  115, 121, 124–127, 132, 135, 168, 171–173, 175, 200 Court of Justice of the European Union  151, 200 Criminal charge  129, 130, 132 Criminality  63–64 Damages  144, 156, 184, 188, 191, 194 Declaration on the Human Rights of Individuals Who are not Nationals of the Country in Which They Live  2, 37, 41, 45 Denial of justice  126, 150, 157 Deportation  16–17, 19–20, 26, 50–51, 53, 57–58, 60–61, 64, 66–69, 74–75, 77–78, 80, 89–90, 98, 103–104, 107, 116, 126–127, 130, 133–136, 139, 141, 145–147, 149, 151, 184 Dignity  31, 44–45, 88, 91, 95, 102, 194, 198 Diplomatic protection  27–28, 30, 42, 155–159, 162, 191, 197 Discretion  25, 31, 38, 41, 61, 116, 140, 144, 161, 168, 198 Discretionary power  31, 61 Discrimination  8, 11, 23, 32, 37, 42, 85–91, 94, 99, 112, 114, 122, 134, 190 Due process of law  10, 12, 34, 38, 118, 125–126, 128, 150, 168 Effective remedy  40, 115, 134, 140–144, 146–147, 149–150, 153, 162, 191–192 EU citizens  1, 12–16, 151

Index European Commission of Human Rights  47, 67, 129 European Convention on Human Rights  2, 7, 31, 35, 42, 45–47, 60, 72, 79, 81, 94–95, 110, 129, 133, 162, 179, 192, 198, 200 European Court of Human Rights  XIV, xv, xvi, 6, 17, 19, 21, 46, 48–49, 53, 56–57, 62–65, 70, 72, 79, 80, 86, 87, 89, 94, 104, 109–110, 117, 124, 130, 144, 162, 164, 196–200 European Union  xiii, xIV, 4–6, 12–13, 35, 72, 151–153, 200 Exceptional circumstances  8, 10, 14, 53, 68, 107–108, 113 Executive  43, 61, 123, 138, 146, 161, 186, 199 Exile  80 Expropriation  184, 190 Fair balance  62, 79, 113, 154 Fair trial  111, 124, 129–131, 142, 162, 168, 170, 172, 183, 199 Family life  40, 44–62, 64, 67–68, 70–80, 91, 112–113, 148–149, 178–180, 182, 200 Files  124, 171, 175, 183, 200 Friendship, Commerce, and Navigation Treaties  25 Foreseeability  61, 118 Fundamental rights  61, 127, 138, 149, 150, 152–153, 161 Good faith  18, 39, 43, 117, 190 Homeland  64, 68, 84, 200 Host country  3–4, 7, 12, 71, 73, 77, 80–84, 107, 200 Human Rights Committee  XIV, XV, XVI, 16, 18, 20–21, 32, 35, 38–39, 47–51, 81, 85, 87, 89, 93–94, 101–103, 111–113, 116–117, 122–123, 128–129, 135–136, 140–141, 162, 191–192, 198, 200 Individual expulsion  XIII, 16 Inhuman treatment  94, 101, 103, 107, 111, 146–147, 195 Injury  27, 158, 159, 184, 188–190, 194, 197 Institute of International Law  1, 28–29, 42–43, 127–128, 184

225 International Covenant on Civil and Political Rights  XI, XIII, XV, 1–2, 18, 31, 33–34, 39, 42, 45–46, 49, 81, 93, 95, 113, 163, 189, 198, 200 International Convention on the Elimination of All Forms of Racial Discrimination  85 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families  7, 18, 118 International Court of Justice  38–39, 42, 115, 119, 136, 158–159, 187, 189 International Law Commission  33, 38, 43, 44, 116, 185–187, 190, 201 Internationally wrongful act  156, 159, 184–186, 189, 190, 201 Inter-American Court of Human Rights  43, 86–87, 88–89, 126, 138, 150–151, 194–195 Iran-United States Claims Tribunal  90, 185, 188 Judicial review  60, 121, 124, 131–132, 147, 154–155, 199 Lawful residence  20–21, 26, 73 Legal assistance  129, 135, 162, 178 Long-term immigrants  1, 3–4, 6–7, 47, 66, 83, 132 Maroufidou formula  117 Migrant workers  1, 7–8, 17–18, 67, 84, 90, 118 Minimum standard  23, 27–28, 32, 159, 161 Mixed claims Commission BelgiumVenezuela  27, 195 Mixed claims Commission Italy-Venezuela  27 National security  8, 10, 12, 25, 33–36, 45, 51, 60–62, 97–98, 104, 108–111, 113, 120–124, 129, 131, 133, 136–140, 146–147, 153, 160–162, 166–167, 172–173, 175, 199–200 National treatment  23, 32 Non-discrimination  37–38, 40, 42, 44, 84, 85–89, 91, 112, 200 Non-refoulement principle  93, 95–97, 108, 110, 112, 140, 141

226 Notion of an alien  1 Notion of expulsion  16 Principle of legality  116 Principle of proportionality  14, 49, 119, 139, 181, 200 Private life  4, 42, 45–46, 49, 56–60, 62–64, 77, 113, 178, 200 Prohibition of torture  93, 98, 101, 104, 111 Procedural guarantees  XII, 8, 18, 20, 34–37, 44, 114–115, 121, 124, 130, 136, 139, 140, 142, 146, 149, 151, 160–161, 164, 187, 199 Provisional protection  168, 182 Public order  6, 10, 12, 23, 25, 34–35, 48, 50–51, 59, 63, 66, 68–69, 70, 79, 112, 119, 121, 129, 136, 139, 140, 161–162, 165, 167, 172–173, 181, 199 Quality of law  61, 118 Redress  6, 27, 110, 141, 144–145, 150, 156, 190 Refugees  1, 9–12, 90–92, 94–98 Reparation  Xv, xvII, 27, 30, 144, 156, 159, 185, 189–197

Index Right to expel  XII, 24–26, 29–30, 63, 91, 95, 191 Rule of law  38, 61, 131, 161, 176 Satisfaction  156, 191–192, 196, 197 Second-generation immigrants  47, 51, 63–64, 66, 200 Security clearance  175, 183 Sovereignty  XII, 25, 41, 46, 112, 201 Special advocate  175–176, 183, 200 Special Rapporteur  17, 32, 43, 93, 187, 196 Stateless persons  1, 11, 12, 17, 25, 53, 81, 83–84 State secret privilege  183 Suspensive effect  120, 132, 147–148, 154, 162 Terrorism  XI, xii, 9, 98, 104, 108–110, 112–113, 122, 138, 199 Undesirable aliens  26, 34, 139 United Nations High Commissioner for Refugees  96, 137 Vattel’s principle  158 Virtual nationals  47