European network of legal experts in gender equality and non-discrimination Links between migration and discrimination A legal analysis of the situation in EU Member States Including summaries in English, French and German Justice and Consumers EUROPEAN COMMISSION Directorate-General for Justice and Consumers Directorate D — Equality Unit JUST/D1 European Commission B-1049 Brussels EUROPEAN COMMISSION Links between migration and discrimination Written by Olivier De Schutter July 2016 Directorate-General for Justice and Consumers 2016 The text of this report was drafted by Olivier de Schutter, coordinated by Catharina Germaine and Isabelle Chopin for the European network of legal experts in gender equality and non-discrimination. Europe Direct is a service to help you find answers to your questions about the European Union. Freephone number (*): 00 800 6 7 8 9 10 11 (*) The information given is free, as are most calls (though some operators, phone boxes or hotels may charge you). LEGAL NOTICE This document has been prepared for the European Commission however it reflects the views only of the authors, and the Commission cannot be held responsible for any use which may be made of the information contained therein. More information on the European Union is available on the Internet (http://www.europa.eu). Luxembourg: Publications Office of the European Union, 2016 ISBN 978-92-79-61905-2 Doi:10.2838/133658 Catalogue number DS-04-16-770-3A-N © European Union, 2016 Contents EXECUTIVE SUMMARY 7 RÉSUMÉ 12 ZUSAMMENFASSUNG 18 INTRODUCTION 24 1 SCOPE 28 1.1 Nationality 28 1.1.1 Definition of nationality 28 1.1.2 ‘Nationality’ and ‘national origin’ 29 1.1.3 ‘Nationality’ and ‘national minorities’ 30 1.1.4 Outstanding problems in the attribution of nationality in EU Member States 31 1.2 Race and ethnic origin 34 1.3 The relationship between nationality and race, ethnic origin, and religion 36 2 THE FRAMEWORK OF EU LAW WITH REGARD TO DISCRIMINATION ON THE GROUND OF NATIONALITY 40 2.1 The prohibition of discrimination on grounds of nationality within the scope of application of the EC Treaty 40 2.2 The progressive alignment of the status of third-country nationals with that of nationals of EU Member States 42 2.2.1 Introduction 42 2.2.2 The status of long-term residents 44 2.2.3 Other categories of third-country nationals 47 2.2.4 Conclusion 52 2.3 The impact of international agreements concluded by the EC/EU 52 2.4 The status of refugees and other persons in need of international protection 57 2.5 Conclusion 59 3 THE FRAMEWORK OF INTERNATIONAL AND EUROPEAN HUMAN RIGHTS LAW WITH REGARD TO DISCRIMINATION ON GROUNDS OF NATIONALITY 60 3.1 United Nations Human Rights Treaties 62 3.1.1 The International Covenant on Civil and Political Rights (ICCPR) 62 3.1.2 The Convention on the Rights of the Child 64 3.2 The Council of Europe: the European Convention on Human Rights and the European Social Charter 66 3.2.1 The European Convention on Human Rights 66 3.2.2 The European Social Charter 76 3.3 The situation of refugees and stateless persons 79 3.3.1 The Geneva Convention relating to the Status of Refugees 79 3.3.2 The Convention relating to the Status of Stateless Persons 80 3.4 Conclusion 81 4 PROTECTION FROM DISCRIMINATION ON GROUNDS OF NATIONALITY IN EU MEMBER STATES 84 4.1 Discrimination on grounds of nationality 84 4.1.1 Prohibition of nationality-based discrimination through international treaties or in constitutional provisions 84 4.1.2 Prohibition of nationality-based discrimination in ordinary legislation 89 4.2 Differences of treatment on grounds of nationality as indirect discrimination on grounds of race or ethnic origin, or religion or belief 98 4.3 Conclusion 103 3 ANNEX 1. Excerpts of the main provisions of international law pertaining to non-discrimination 105 ANNEX 2. Summary tables 108 LIST OF CASES (International Courts or Expert Bodies) 109 BIBLIOGRAPHY 112 4 Members of the European network of legal experts in gender equality and non-discrimination Management team General coordinator Marcel Zwamborn Human European Consultancy Specialist coordinator Susanne Burri Utrecht University gender equality law Acting specialist coordinator Alexandra Timmer Utrecht University gender equality law Specialist coordinator Isabelle Chopin Migration Policy Group non-discrimination law Project management Ivette Groenendijk Human European Consultancy assistants Michelle Troost-Termeer Human European Consultancy Gender equality law Erin Jackson Utrecht University assistant Non-discrimination assistant Catharina Germaine Migration Policy Group and research editor Senior experts Senior expert on racial or ethnic origin Lilla Farkas Senior expert on age Mark Freedland Senior expert on EU and human rights law Christopher McCrudden Senior expert on social security Frans Pennings Senior expert on religion or belief Isabelle Rorive Senior expert on gender equality law Linda Senden Senior expert on sexual orientation Krzysztof Smiszek Senior expert on EU law, sex, gender identity and gender Christa Tobler expression in relation to trans and intersex people Senior expert on disability Lisa Waddington 5 National experts Non-discrimination Gender Austria Dieter Schindlauer Martina Thomasberger Belgium Emmanuelle Bribosia Jean Jacqmain Bulgaria Margarita Ilieva Genoveva Tisheva Croatia Ines BojiĆ Nada Bodiroga-Vukobrat Cyprus Corina Demetriou Evangelia Lia Efstratiou-Georgiades Czech Republic David Zahumenský Kristina Koldinská Denmark Pia Justesen Stine Jórgensen Estonia Vadim Poleshchuk Anu Laas Finland Rainer Hiltunen Kevät Nousiainen FYR of Macedonia Biljana Kotevska Mirjana Najcevska France Sophie Latraverse Sylvaine Laulom Germany Matthias Mahlmann Ulrike Lembke Greece Athanasios Theodoridis Sophia Koukoulis-Spiliotopoulos Hungary Andras Kadar Beáta Nacsa Iceland Gudrun D. Gudmundsdottir Herdís Thorgeirsdóttir Ireland Orlagh O’Farrell Frances Meenan Italy Chiara Favilli Simonetta Renga Latvia Anhelita Kamenska Kristīne Dupate Liechtenstein Wilfried Marxer Nicole Mathé Lithuania Gediminas Andriukaitis Tomas Davulis Luxembourg Tania Hoffmann Anik Raskin Malta Tonio Ellul Romina Bartolo Montenegro Nenad Koprivica Ivana Jelic Netherlands Rikki Holtmaat Marlies Vegter Norway Else Leona McClimans Helga Aune Poland Lukasz Bojarski Eleonora Zielinska Portugal Ana Maria Guerra Martins Maria do Rosário Palma Ramalho Romania Romanita Iordache lustina Ionescu Serbia Ivana Krstic Ivana Krstic Slovakia Janka Debreceniova Zuzana Magurová Slovenia Neža Kogovšek Šalamon Tanja Koderman Sever Spain Lorenzo Cachón María-Amparo Ballester-Pastor Sweden Per Norberg Ann Numhauser-Henning Turkey Dilek Kurban Nurhan Süral United Kingdom Lucy Vickers Grace James & Rachel Horton 6 . Executive summary This report, an update of a report initially published in 2009, aims to describe the links between nationality and protection from discrimination under EU and international law as well as in the domestic legal systems of EU Member States. Protection from discrimination should be seen as a key component of the current strategies for the integration of third-country nationals, which the European Commission pledged to support in the Action Plan it announced in June 2016.1 Such strategies are particularly important today, as the situation of the 20 million third-country nationals living in the EU-28 Member States, representing about 4 % of the total population of the EU, has been figuring prominently in the public debate, and as the European Union has witnessed a significant rise in the inflow of refugees since 2015. Against this background, the purpose of this report is to identify whether third-country nationals, once they enter the European Union, are protected from discrimination on grounds of nationality and from discrimination on grounds of race, ethnic origin or religion in situations where nationality is used as a proxy for these grounds. Article 3(2) common to both the Racial Equality and Employment Equality Directives states that these instruments ‘do […] not cover difference of treatment based on nationality’. However, this clause does not imply that all differences of treatment on grounds of nationality are permissible. Such differences in treatment may result in indirect discrimination on grounds of race, ethnic origin or religion. They may also be in violation of other rules of EU law, including both EU secondary legislation and the general principle of equal treatment, which applies in the field of application of EU law. The integration of immigrants can succeed only if these individuals are adequately protected from discrimination: therefore, the principle of equality of treatment is a key component of the Union’s immigration policy, launched at the Tampere European Council in 1999 and announced by a 2000 communication of the European Commission. Indeed, by stipulating in Article 15(3) that ‘Nationals of third countries who are authorised to work in the territories of the Member States are entitled to working conditions equivalent to those of citizens of the Union’, the EU Charter of Fundamental Rights, proclaimed in December 2000, itself makes a contribution in this regard. Yet, the position of nationals of EU Member States remains much more advantageous than that of third-country nationals. The provisions of the Treaty on the Functioning of the European Union which prohibit discrimination on grounds of nationality, whether in general (‘within the scope of application of the Treaties’: Article 18 TFEU (ex-Art. 12 EC)) or in the specific contexts of the freedom of movement of workers (Article 45(2) TFEU (ex-Art. 39(2) EC)) or of freedom of establishment (Article 49 TFEU (ex-Art. 43 EC)), have been interpreted to protect only the nationals of Member States. The scope of application of Article 18 TFEU is still limited to nationals of EU Member States, and it covers neither differences of treatment between EU citizens and third-country nationals nor differences of treatment between the nationals of different third countries. This report describes how the protection afforded to third-country nationals has improved in recent years as a result of developments both in EU law and in international human rights law.