Non-expulsion of long-term immigrants

Doc. 9633

6 December 2002

Non-expulsion of long-term immigrants

Recommendation 1504 (2001)

Reply from the Committee of Ministers

adopted at the 820th meeting of the Ministers’ Deputies (4 December 2002)

1. The Committee of Ministers carefully examined Parliamentary Assembly Recommendation 1504 (2001) on non-expulsion of long-term immigrants. Before drafting a reply it requested the opinion of the Steering Committee for Human Rights (CDDH). Reference is made to that opinion, which is appended, for more detailed explanations of the stand taken in this reply.

2. The Committee of Ministers would like to underline that it has recently developed a certain number of principles in this field in its Recommendations Rec(2000)15 concerning the security of residence of long-term migrants¹ and Rec(2002)4 on the legal status of persons admitted for family reunification², which address many of the concerns expressed by the Parliamentary Assembly.

3. The Committee of Ministers agrees, in the light of the case-law of the European Court of Human Rights (notably referred to in the appended opinion of the CDDH), that there is a need to provide adequate protection against arbitrary decisions on expulsion for long-term immigrants and refers, in this respect, to the above-mentioned Recommendation Rec(2000)15. It is important that member states take action in this field and that they fully implement the above mentioned Recommendation in order to enhance the possibilities of integration of long-term immigrants in the host country and in order to protect their human rights.

4. Like the CDDH, the Committee of Ministers is of the opinion that rather than elaborating an additional protocol to the European Convention of Human Rights at this stage, there should be an examination, in the near future, of to what extent member states have implemented the existing texts, including the two above-mentioned recommendations. The CDDH will be invited to start this work in June 2003. If it then appears that implementation is not satisfactory, the possibility of offering assistance with implementation to the countries concerned could be envisaged. Furthermore, it is recalled that Protocol No. 12 to the Convention, when it comes into force, and the pertinent case-law of the European Court of Human Rights, in particular with regard to Articles 8 and 14, also offer protection against expulsion of long-term immigrants.

Appendix

Opinion of the Steering Committee for Human Rights (CDDH)

on Recommendation 1504 (2001) of the Parliamentary Assembly

on non-expulsion of long-term immigrants

(adopted by the CDDH at its 54th meeting, 1-4 October 2002)

1. The Steering Committee for Human Rights (CDDH) has studied with interest the Parliamentary Assembly Recommendation which is the subject of this opinion, which deals with a sensitive issue touching on several of the rights contained in the European Convention on Human Rights, such as the right to protection against torture and inhuman and degrading treatment or punishment and the right to protection of family life. The CDDH has also considered carefully the report of the Committee of the Parliamentary Assembly on Migration, Refugees and Demography on which the Recommendation is based³.

2. The CDDH recalls that the Committee of Ministers has recently developed a certain number of principles in this field in its Recommendations Rec(2000)15 concerning the security of residence of long-term migrants⁴ and Rec(2002)4 on the legal status of persons admitted for family reunification, which should already provide a reply to some of the concerns expressed by the Parliamentary Assembly.

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3. While keeping the above-mentioned elements in mind, the CDDH offers in particular the following comments.

4. The text raises some difficulties of comprehension of a terminological nature (for example, the use of alternative terms such as: “legal immigrants”, “long-term migrants”, “long-term immigrants”), which does not make it possible to determine its exact scope. In particular, there is a discrepancy between the title and the contents of the Recommendation. While the title refers to all long-term immigrants, the content seems to limit itself to those who are the subject of a conviction by a court. For its part, the CDDH uses in its opinion, the definition of the term “long-term immigrant” contained in Recommendation Rec(2000)15 of the Committee of Ministers (paragraph 1.a)⁵.

5. In paragraph 11.i of the Recommendation, the Parliamentary Assembly suggests that the Committee of Ministers examines the possible drafting of an additional protocol to the European Convention on Human Rights concerning the protection of long-term “migrants” against expulsion. The CDDH agrees that there is a need to provide adequate protection against arbitrary decisions on expulsion for long-term immigrants and refers, in this respect, to the measures contained in the above-mentioned Recommendation Rec(2000)15 of the Committee of Ministers. It is important that member states take action in this field and that they fully implement the above mentioned Recommendation in order to enhance the possibilities of integration of long-term immigrants in the host country. This cannot but also be beneficial to social stability.

6. However, the existing legal instruments, including Protocol No. 12 to the Convention when it comes into force and the pertinent case-law of the European Court of Human Rights, in particular with regard to articles 8 and 14, already currently offer protection against expulsion of long-term immigrants. The CDDH is therefore not convinced about the necessity to draft such an additional protocol at this stage. In its opinion, it would rather be advisable to examine to what extent member states have implemented the two above-mentioned recommendations of the Committee of Ministers, which cover, as has been pointed out above, many of the points raised by the Assembly. If this reveals that the implementation is not satisfactory, and that there is consequently a lack of legal protection, it could be envisaged to offer assistance to the countries concerned.

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7. The Parliamentary Assembly also recommends that member states be invited to recognise that the expulsion of a long-term immigrant is a disproportionate and discriminatory sanction (paragraph 11.ii.a). The CDDH understands the concern of the Assembly with respect to any decision on expulsion affecting this category of immigrants. However, although such a decision is of a very serious nature, it cannot always be considered as a sanction within the meaning of the Court’s case-law⁶. In any event, before deciding on the expulsion of a long-term immigrant, the competent authority should consider alternative measures (for example, by replacing the permanent residence permit with a non-permanent one)⁷, in accordance with the principle of proportionality, taking into account the individual situation of the immigrant concerned⁸. The Court’s case-law underlines that the necessity and proportionality of an expulsion measure must be examined under Article 8 of the Convention in cases in which the expulsion order constitutes an interference with the right to respect for family life⁹. This case-law protects in particular long-term immigrants as the length of residence is one of the main factors taken into account by the Court.

8. The Parliamentary Assembly also considers that expulsion of a long-term immigrant is discriminatory (paragraph 11.ii.a) as it is a sanction that cannot be used against nationals, and that expulsion after a prison sentence is a double punishment (paragraph 11.ii.e). The CDDH understands the concern of the Assembly, but it cannot subscribe to such categorical conclusions for the following reasons:

– The CDDH recalls that, according to the case-law of the Court, discrimination contrary to Article 14 involves treating persons in like situations differently or in unlike situations the same. Immigrants, however long-term, are not in a like situation as nationals because the latter have a right to abode and the former do not. Thus in a decided case the Court found that the applicant, a foreigner, could not be compared to national juvenile delinquents as the latter have a right to abode in their own country and cannot be expelled from it ¹⁰which is confirmed by Article 3 of Protocol No. 4. It is of course possible that an expulsion decision may be discriminatory in other respects, but all will depend on the circumstances of the case.–

– The CDDH considers that it is necessary to be vigilant over possible consequences of expulsion measures that are taken following a conviction. These consequences may be particularly serious in certain cases with regard to the personal situation of the convicted person and his/her family. This being said, the CDDH recalls that the concept of “double punishment” denounced by the Assembly is not accepted in the Court’s case-law ¹¹9.

9. The statement that the threat of expulsion constitutes an obstacle to the integration of long-term immigrants (paragraph11.ii.b) seems too categorical. Whereas in a state governed by the rule of law, expulsion remains possible, this measure, fortunately, remains unlikely for the large majority of long-term immigrants, just like the risk of imprisonment remains unlikely for the majority of nationals and non-nationals.

10. The CDDH cannot but agree with the Parliamentary Assembly that the “ordinary-law” procedures and penalties applied to nationals should also be applicable to long-term immigrants (paragraph 11.ii.c). This is the case in Europe. The CDDH cannot imagine that a member state applies its penal code differently for nationals and long-term immigrants. However, in cases where a prison sentence could possibly be combined with or followed by an administrative expulsion procedure, it is necessary that judicial or administrative authorities take account of the relevant case-law, in particular that concerning article 8 ECHR, in order to avoid discrimination in comparison with nationals.

11. As to the statement that expelling persons on public order grounds, where their guilt has not been legally established, is contrary to the principle of presumption of innocence (paragraph 11.ii.d), the CDDH recalls that expulsion may result from a conduct that is not a criminal offence. It refers to Article 1, paragraph 2 of Protocol No. 7 to the European Convention on Human Rights¹². In the view of the CDDH the concept of presumption of innocence is irrelevant in this context. Furthermore, it recalls that expulsion can only be resorted to within the framework of the administrative and legal guarantees which characterise a state governed by the rule of law. The CDDH refers on this point to paragraph 5 of the above-mentioned Recommendation Rec(2000)15, which refers to these guarantees. This text of the Committee of Ministers gives a response also to another concern of the Assembly (paragraph 11.ii.h), in that it indicates that long-term immigrants born on the territory of a member state or admitted to the member state before the age of ten, who have been lawfully and habitually resident, should not be expellable once they have reached the age of eighteen. It also indicates that minors should not be expelled unless they constitute a serious threat to national security or public safety (paragraph 11.ii.g)¹³.

12. The Assembly underlines the need of a detailed examination of the private and family situation of a long-term immigrant facing expulsion (paragraph 11.ii.i). The CDDH recalls that it follows from the Court’s case-law that a detailed examination must be made of the private and family situation of a person facing expulsion. In expulsion cases a fair balance must be struck between the applicant’s right to respect for family life and the prevention of disorder or crime¹⁴. The CDDH also recalls the absolute prohibition under the Convention of expulsion of a person to a country where he/she would risk being exposed to torture or to inhuman or degrading treatment or punishment¹⁵. Moreover, member States shall not expel persons to countries where they risk the death penalty¹⁶.

13. The CDDH agrees with the Assembly as to the need of adequate procedural guarantees. On this point (paragraph 11.ii.j), it refers to Article 1 of Protocol No. 7 to the Convention, which contains certain procedural guarantees for aliens who are lawfully resident in the territory of a state. Moreover, the CDDH notes that the Committee of Ministers has recommended to member states^17:

– to include the right to a fair hearing and a reasoned decision among the procedural guarantees for long-term immigrants (which goes further than the requirements of the above-mentioned Protocol No. 7);–

– to recognise to these immigrants a right to an appeal to an independent administrative authority or a court with competence to examine the merits and lawfulness of the decision, as well as a right for the long-term immigrant to be represented for that purpose. As regards the suspensive effect of an appeal, the Committee of Ministers has recommended that, if national legislation does not provide for it, a request to suspend the execution of any expulsion decision should be duly examined with regard to the necessities of national security.