13.2.11 Discrimination based on citizenship or residency status Condensed: Discrimination based on citizenship or residency status is included under discrimination based on other status. As with other types of discrimination, any distinction based on citizenship or residency status which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons on an equal footing of all rights and freedoms must be based on objective and reasonable criteria. If a distinction or difference of treatment based on citizenship or residency status is unreasonable or unjustified it will constitute discrimination. A citizenship requirement may constitute an objective and reasonable criterion with regard to certain rights such as the right to vote and stand for national and local elections. In other types of elections, such as for example to work councils, such a distinction may not be considered a reasonable or justified requirement. In cases where a state is responsible for the forced exile of a person who in exile has obtained new citizenship, the state of origin may not discriminate on the basis of citizenship in cases of property restitution. Denial of social benefits based on citizenship may be discriminatory. For example a foreign-national worker who pays contributions to an unemployment insurance fund in the same way as citizens and meets all other conditions should not be denied unemployment benefits on the basis of his or her nationality. Comprehensive: Discrimination based on citizenship or residency status is included under discrimination based on ‘other status’.[1] As with other types of discrimination any distinction based on citizenship or residency status ‘which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons on an equal footing of all rights and freedoms’ must be based on objective and reasonable criteria.[2] While citizenship is generally a valid distinction with regard to certain rights such as the right to vote and stand for national and local elections,[3] in other types of elections such a distinction may be discriminatory. In Karakurt v Austria, the HRC held that to make citizenship an eligibility criterion to stand for election to a work council, which promoted staff interests and supervised compliance with work conditions, violated the prohibition of discrimination in article 26 of the ICCPR since it was not reasonable or justified to exclude individuals directly involved and living and working in the area from such positions.[4] In cases where a state is responsible for the forced exile of a person who in exile has obtained new citizenship, the state of origin may not discriminate on the basis of citizenship in cases of property restitution. Adam v Czech Republic dealt with restitution of property which had been confiscated by the state when the applicant fled from the then Czechoslovakia. In exile he had become a US citizen, thereby losing his Czech citizenship. The HRC held that, as the author's original entitlement to his property by virtue of inheritance and not citizenship, the condition of citizenship was unreasonable and therefore contrary to article 26 of the ICCPR to deny a right to restitution or compensation for the loss of his property.[5] (See *denial of property restitution*). Denial of social benefits due to differences of treatment based on citizenship can also in some cases be discriminatory. In Gaygusuz v Austria, a non-citizen legally residing and working in Austria was denied a form of unemployment benefit on the grounds that he was not an Austrian citizen. The ECtHR noted that the applicant paid contributions to the unemployment insurance fund as did Austrian citizens and he met all the other conditions for emergency assistance, thus being in a like situation to an Austrian with regard to entitlement to unemployment insurance. The ECtHR concluded that the differential treatment was not based on any reasonable or objective justification, and therefore that it was discriminatory.[6]Laws and regulations which apply to both citizen and non-citizens may be discriminatory based on citizenship if they disproportionately affect foreign nationals.[7] (See also *arbitrary or discriminatory exclusion from social security*. A statute that allowed German speaking citizens of Belgium to use German in criminal proceedings but did not extend the same right to non-Belgian nationals has been held by the ECJ to be discriminatory.[8] Literature consulted O de Schutter International human rights law (2010) M Sepúlveda et al Universal and regional human rights protection – Cases and commentaries (2004) W Vandenhole Non-discrimination and equality in the view of the UN human rights treaty bodies (2005)
[1]Gueye v France communication 196/1985 (HRC 1989) para 9.4. The prohibition on discrimination based on nationality is explicitly prohibited in CMW art 1. [2]HRC General Comment 18 para 13. [3]CERD General Recommendation 30 para 3. See also HRC General Comment 15. [4] Communication 965/2000 (HRC 2002) para 8.4. [5] Communication 586/1994 (HRC 1996) para 12.5. [6] Application 17371/90 (ECtHR 1996) paras 46-50. See also Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03 (IACtHR 2003) para 154. [7]CERD Concluding Observations: Denmark, CERD/C/DEN/CO/17 (CERD, 2006) para 18. [8] Ministère Public v Mutsch case 137/84 (ECJ 1985) para 18.
Condensed:
Discrimination based on citizenship or residency status is included under discrimination based on other status. As with other types of discrimination, any distinction based on citizenship or residency status which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons on an equal footing of all rights and freedoms must be based on objective and reasonable criteria. If a distinction or difference of treatment based on citizenship or residency status is unreasonable or unjustified it will constitute discrimination.
A citizenship requirement may constitute an objective and reasonable criterion with regard to certain rights such as the right to vote and stand for national and local elections. In other types of elections, such as for example to work councils, such a distinction may not be considered a reasonable or justified requirement. In cases where a state is responsible for the forced exile of a person who in exile has obtained new citizenship, the state of origin may not discriminate on the basis of citizenship in cases of property restitution. Denial of social benefits based on citizenship may be discriminatory. For example a foreign-national worker who pays contributions to an unemployment insurance fund in the same way as citizens and meets all other conditions should not be denied unemployment benefits on the basis of his or her nationality.
Comprehensive:
Discrimination based on citizenship or residency status is included under discrimination based on ‘other status’.[1] As with other types of discrimination any distinction based on citizenship or residency status ‘which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons on an equal footing of all rights and freedoms’ must be based on objective and reasonable criteria.[2]
While citizenship is generally a valid distinction with regard to certain rights such as the right to vote and stand for national and local elections,[3] in other types of elections such a distinction may be discriminatory. In Karakurt v Austria, the HRC held that to make citizenship an eligibility criterion to stand for election to a work council, which promoted staff interests and supervised compliance with work conditions, violated the prohibition of discrimination in article 26 of the ICCPR since it was not reasonable or justified to exclude individuals directly involved and living and working in the area from such positions.[4]
In cases where a state is responsible for the forced exile of a person who in exile has obtained new citizenship, the state of origin may not discriminate on the basis of citizenship in cases of property restitution. Adam v Czech Republic dealt with restitution of property which had been confiscated by the state when the applicant fled from the then Czechoslovakia. In exile he had become a US citizen, thereby losing his Czech citizenship. The HRC held that, as the author's original entitlement to his property by virtue of inheritance and not citizenship, the condition of citizenship was unreasonable and therefore contrary to article 26 of the ICCPR to deny a right to restitution or compensation for the loss of his property.[5] (See *denial of property restitution*).
Denial of social benefits due to differences of treatment based on citizenship can also in some cases be discriminatory. In Gaygusuz v Austria, a non-citizen legally residing and working in Austria was denied a form of unemployment benefit on the grounds that he was not an Austrian citizen. The ECtHR noted that the applicant paid contributions to the unemployment insurance fund as did Austrian citizens and he met all the other conditions for emergency assistance, thus being in a like situation to an Austrian with regard to entitlement to unemployment insurance. The ECtHR concluded that the differential treatment was not based on any reasonable or objective justification, and therefore that it was discriminatory.[6]Laws and regulations which apply to both citizen and non-citizens may be discriminatory based on citizenship if they disproportionately affect foreign nationals.[7] (See also *arbitrary or discriminatory exclusion from social security*.
A statute that allowed German speaking citizens of Belgium to use German in criminal proceedings but did not extend the same right to non-Belgian nationals has been held by the ECJ to be discriminatory.[8]
Literature consulted
O de Schutter International human rights law (2010)
M Sepúlveda et al Universal and regional human rights protection – Cases and commentaries (2004)
W Vandenhole Non-discrimination and equality in the view of the UN human rights treaty bodies (2005)
[1]Gueye v France communication 196/1985 (HRC 1989) para 9.4. The prohibition on discrimination based on nationality is explicitly prohibited in CMW art 1.
[2]HRC General Comment 18 para 13.
[3]CERD General Recommendation 30 para 3. See also HRC General Comment 15.
[4] Communication 965/2000 (HRC 2002) para 8.4.
[5] Communication 586/1994 (HRC 1996) para 12.5.
[6] Application 17371/90 (ECtHR 1996) paras 46-50. See also Juridical Condition and Rights of the Undocumented Migrants, Advisory Opinion OC-18/03 (IACtHR 2003) para 154.
[7]CERD Concluding Observations: Denmark, CERD/C/DEN/CO/17 (CERD, 2006) para 18.
[8] Ministère Public v Mutsch case 137/84 (ECJ 1985) para 18.