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There has
been clarification of several human rights
obligations from the UN and treaty bodies
since 2001. The 2003 Final Report on the
Human Rights on Non-Citizens by David
Weissbrodt of the Sub-Commission to the
then UN Commission on Human Rights
established the general non-discrimination
of non-citizens. It defined them and
especially asylum-seekers as a
disadvantaged group, Add 3 paras. 4, 5.
They are to “enjoy all human rights unless
exceptional distinctions serve a
legitimate State objective and are
proportional to the achievement of that
objective,” Executive Summary.
The
European Court of Human Rights case
law has continued to refine protection
from torture, cruel treatment et al
and the related required “effective
remedy,” notably in MSS v
Belgium & Greece 2011. The
Court’s case law maintains its
position that deportation may not
violate family rights except in the
most serious criminality situations.
The
Inter-American Court of Human Rights
issued a 2003 advisory opinion Juridical
Condition and Rights of the Undocumented
Migrants which centres on
non-discrimination and minimum due process
guarantees, see para. 121, 122. The
Inter-American Commission on Human Rights
ruled in case law on due process standards
in deportation when protection from
torture et al and when family rights were
at issue. It also issued a Dec 2010 Report
on US immigration procedures detailing
detention and due process obligations.
The UN Human
Rights Committee has established in its
case law that deportation can violated
family rights, in line with the European
Court and Inter-American Commission
findings. It also found that the right to
freedom of movement for non-citizens in a
similar predicament to stateless persons
can be violated by deportation, Warsame v
Canada.
1.
Due
process
for potential violation of family
rights by deportation
2.
Baseline
due process for all immigrants and
disadvantaged group status
3.
Protection
from return to degrading third
country, limits to speed in appeal
procedures and asylum seekers as a
vulnerable group
4.
No
Direct Backs and due process at land
borders
5.
No
deportation
violating family life and freedom of
movement
6.
The
European Court and confusion on right
to Fair Trial In Maaouia
vs France 2000 the European Court
found: ‘Decisions regarding the entry,
stay and deportation of aliens do not
concern the determination of an
applicant’s civil rights or obligations or
of a criminal charge against him, within
the meaning of [ECHR] Article 6 para.1 of
the Convention,’ para, 40. The Court
interpreted the later Protocol as
replacing rights in the Convention, para.
36. Yet the Protocol rights can more
easily be set aside and they do not
require an independent body at any point.
Moreover, civil rights arising in
deportation proceedings have been
adjudicated so that an ordinary reading of
the text of Article 6.1 of the ECHR
requires an independent and impartial
hearing. The European
Court also found in Maaoui v France
that deportation orders are for the
purpose of immigration control and do not
concern the determination of a criminal
charge, para. 39. In contrast, the
Inter-American Commission found that when
a criminal charge was a precursor to a
deportation procedure the deportation was
a form of penalty. Dissenting Judge
Louaides joined by Judge Traja pointed
out, appended to the judgment: ‘Protocols
add to the rights of the individual; they
do not restrict or abolish them.’ They
note that the European Court itself found
that the exclusion order in question had
major repercussions on Maaoui’s private
and family life. The majority finding that
the right to an independent and impartial
tribunal, Article 6(1), does not apply is
inconsistent with the Court’s earlier case
law which found that the right applied
when a dispute ‘relates to the scope of a
civil right and the manner of its
exercise,’ see the book by Van
Dijk Van Hoof et al on the European Court
and its case law. 7.
Human
Rights Committee confusion on Fair
Trial In 2007 the
HRC found in Zundel vs Canada that
since
only the ‘right (…) to continue residing’
in Canada was involved in expulsion, there
was no ‘suit at law’ and the right to an
independent and impartial tribunal
hearing, Article 14(1) of the CCPR, did
not apply(para. 6.8). Yet family rights
were adjudicated in this case. The HRC
then explicitly drew on this case in its
General Comment No. 32 about Article 14
stating that an independent tribunal
hearing, Article 14(1), does not apply to
extradition, expulsion and deportation
procedures. It went on to state that
although there is no right of access to a
court or tribunal as provided for by
Article 14(1), in these and similar cases,
other procedural guarantees may still
apply, para. 17. The same General Comment
32 on Article 14 adds: ‘The procedural
guarantees of article 13 of the Covenant
incorporate notions of due process also
reflected in article 14 and thus should be
interpreted in the light of this latter
provision. Insofar as domestic law
entrusts a judicial body with the task of
deciding about expulsions or deportations,
the guarantee of equality of all persons
before the courts and tribunals as
enshrined in article 14, paragraph 1, and
the principles of impartiality, fairness
and equality of arms implicit in this
guarantee are applicable’ para. 62. Conclusion Canada is
an OAS member and falls under the OAS
human rights provisions as established
at the time of joining. It also
accepted in joining the competence of
the Inter-American Commission on Human
Rights for interpreting the
obligations in the region. At least a
form of Habeas Corpus as accessible
and effective as that available for
citizens is required if any form of
incarceration is used. At least one
independent court hearing is required
for any non-citizen who has a risk to
life, or torture et al, or to family
rights, at issue in deportation
proceedings. Top Click:  |