It seems that immigration issues have never been as prominent as in the past few years, and especially those concerning the application of expulsion/deportation measures against foreign nationals without legal residence, or those who have lost a status which had previously enabled them to legally reside in a given country. Recent decisions on the application of these immigration policy measures gave rise to public debate over their “justification” and about “flagrant human rights violations”. The frequent misguiding or tendentious information provided especially by certain Bosnian-Herzegovinian media has divided the public into those who believe the state is conducting a ‘lynching’ of foreign nationals who are to be deported and those who believe that ‘their place is not in this country and they should go back to where they came from’.This issues has become part of everyday political ‘bickering’ and has completely overshadowed many other, much more important subjects that Bosnian-Herzegovinian society should be concerned with. That is why this text is an attempt to return this topic to where it belongs, without losing sight of its human aspect since it is directly linked to upholding human rights and basic freedoms. What are the competencies of the state when it comes to immigration, and what human rights are at stake?

State Powers of Discretion in Immigration Policy

International instruments for the protection of human rights that are directly or indirectly concerned with the status of foreign nationals, their rights in the country where they reside, and measures that states can undertake against foreign nationals including that of expulsion do not contain a general provision on the prohibition of expulsion. This means that the international principle of extensive powers of discretion of the state in matters of immigration is generally accepted, and the limitations of the state in exercising this sovereign right are derived from their international obligations of upholding conventions and agreements they have signed and ratified. These limitations are sometimes explicitly stated in an international instrument, and are sometimes to be found in reports and recommendations adopted by bodies monitoring the implementation of international instruments and interpreting their provisions.

Above all, a state cannot expel its own citizens. Namely, Protocol No. 4 to the European Convention guarantees each person the right of not being expelled by either an individual or a collective measure from the territory of the state of which he is a national and cannot be deprived of the right to enter the territory of the state of which he is a national. The same right is also guaranteed by the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.There are no limitations to this right, which means that a national of a state can never under any circumstances be expelled from that state.

However, this right is not guaranteed to aliens, and every state, within its sovereignty has extensive powers of discretion to regulate the rights of aliens to enter, reside and leave its territory. In everyday terms, this means, among other things, that the state has the right to expel/deport or extradite any alien from its territory in accordance with national legislation.

There are two important limitations of powers of discretion of the state in this respect. The first prohibits expulsion to a country where the person would be in danger of human rights violations, i.e. in which there is a real risk that the person would be exposed to torture or inhumane treatment. This limitation can be found in a number of international documents. The second limitation, stemming from the European Convention, pertains to the obligation of upholding the right to family life, which is also often invoked through the Convention on the Rights of the Child.

Prohibition of Expulsion to Countries with Risks of Human Rights Violations

The non-refoulement principle from the Convention relating to the Status of Refugees from 1951 is the first international legal mechanisms imposing limitations on states vis-à-vis the expulsion of aliens to countries where their human rights are under threat. The principle means that Contracting States shall not “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.”For the purposes of this analysis, it is interesting because it applies not only to refugees, but also to asylum seekers. It is significant insomuch as it has become part of international common law and has been included in some other international instruments and agreements.

Standards pertaining to expulsion can be found in a number of international documents binding for BiH. Primarily, provisions on the prohibition of expulsion, refoulement and extradition of persons to a state where there is a risk of them being exposed to torture can be found in the UN Convention against Torture. They are restrictive in terms of the scope of protection, but not in terms of the persons protected. The implementation of the Convention is monitored by the Committee against Torture whose decisions are declaratory, but nonetheless relevant in interpreting the provisions of this Convention, and especially the part pertaining to the procedure for proving the possibility that someone will be exposed to torture in the country to which that person is expelled. According to the General Comment of the Committee from 1996, the only document of its kind passed by the Committee to date, the burden of proof that the person may be exposed to torture falls on that person and he must prove that the threat is personal and real.

Furthermore, the International Covenant on Civil and Political Rights also guarantees certain procedural rights in the expulsion process, but only to aliens with legal residence in the territory of the member state. Persons with such a status can be expelled only by means of a lawful decision, they must be enabled to contest the expulsion measure, they have the right to have their case examined by relevant authorities, as well as the right to legal representation. These rights, however, can be limited for reasons of national security, but the General Comment of the Committee for Human Rights, another monitoring body, stresses the requirement for state to apply their laws “in good faith” and to guarantee equality before the law.

In our case, the most interesting are the guarantees provided by the European Convention since it is directly applied in the domestic legal system. The European Convention does not contain an explicit provision prohibiting expulsion, but the person whose rights are affected by immigration procedures can invoke certain other rights and freedoms from the European Convention. Namely, through its case law, the European Court for Human Rights has established certain principles and views about the rights of immigrants, and especially in cases related to alleged violations of the right not to he exposed to torture and the right to family life.

The European Court does not contest the powers of discretion of the state in conducting immigration policy, and in that respect, its cases concerned with immigration issues always contain the following remark: “as a matter of well-established international law and subject to their treaty obligations including the [European] Convention, [Contracting States have the sovereign right] to control the entry, residence and expulsion of aliens.”However, when it comes to protecting the right against torture, the European Court believes that the discretion rights of the state are not absolute and that they are susceptible to restrictions in line with the guarantees provided under the European Convention.

Article 3 of the European Convention guarantees that no person will be subject to torture, inhumane or degrading treatment or punishment, and it pertains primarily to the obligations of the state towards persons in its territory. In a landmark case concerning these issues, Soering v. the United Kingdom, the European Court extended these obligations beyond the territories of States Parties, and concluded that State Parties must not expel aliens into countries where there is a reasonable suspicion that these persons will be exposed to a “real risk of torture or inhumane and degrading treatment”. However, in defining inhumane treatment, the European Court established the so-called de minimis rule according to which ill-treatment must be of a certain level of cruelty to elicit the protection under Article 3 of the European Convention.

In view of the powers of discretion of the state in matters of immigration, the interpretations of the European Court pertaining to the prohibition of expulsion are extremely restrictive and apply strict standards. Thus, in the case of Cruz Varas and Others v. Sweden, the European Court found that there was not violation of Article 3 of the European Convention in the expulsion of the applicants from Sweden, because there were no grounds to determine that the applicant would have been exposed to inhuman or degrading treatment following expulsion to Chile. Another case of this sort, Vilvarajah and Others v. the United Kingdom, concerns a group of Tamils whose request for asylum in the United Kingdom was refused and they were expelled to Sri Lanka. The European Court examined the allegations of risk that the applicants would be subjected to inhuman treatment in Sri Lanka, and after rather strictly applying the standard of ‘real risk’ concluded that “the general situation did not establish that their position was any worse than the generality of other Tamils who were returning to their country.”The Court went a step further concluding that “given that the situation in the country was still unstable there was a possibility of their being imprisoned,” but that in such circumstances the mere possibility of ill-treatment was not in itself sufficient to give rise to a breach of the right against torture and inhumane treatment.
However, in Bader and Others v. Sweden, the European Court came to a different conclusion. Namely, the Court concluded that the deportation of the applicant to Syria, where he had been tried in absentia and sentenced to death, was a violation of his right to life and his right to prohibition of inhumane treatment. The Court accorded particular importance to the fact that the applicant was sentenced through proceedings that amounted to a flagrant denial of a fair trial, since these were summary criminal proceedings with complete disregard for the right to a defence.
Deportation and Violations of the Right to Family Life
Another type of restriction imposed on the powers of discretion of the state pertains to matters of the right to family life and the rights of children in accordance with the Convention on the Rights of the Child.
In Abdulaziz, Cabales and Balkandali v. the United Kingdom, the European Court faced the challenge of deciding about the rights of immigrants in a country where they had immigrated. The proceedings were initiated by three applicants who had legal residence in the United Kingdom and permanent residence permits. However, in accordance with the UK immigration laws at the time, their husbands’ requests to enter the country and remain there were refused. In deciding on the right of the applicants to family life, the European Court stressed that the case was not only about the issue of family life, but also about matters of immigration. Reaffirming the international principle of discretion powers of the state in regards to matters of immigration, the European Court upheld an exceptionally important view according to which the obligation of respecting the right to family life cannot be seen as an extension of the general obligation of the State Party to respect the choice of country of residence of spouses, that is, to accept married couples who are not its nationals. The Court concluded that the applicants did not prove that there were obstacles for them to lead a family life in their countries of origin, and that there were no explicit reasons why this was not to be expected from them.
In cases where no criminal act has been committed, an important and often decisive criterion for determining a violation of the right to family life is the possibility of leading a family life in the country of origin of the immigrant faced with deportation. Namely, in cases where it is realistic to expect family life to transpire unimpaired in the country of origin of the immigrants, the European Court is liable to determine that there are no violations. Thus for example in Gül v. Switzerland, where the Swiss authorities refused to allow the minor son of a Turkish national who had residence in Switzerland on humanitarian grounds to join his father because the whole family could have returned to Turkey, the Court ruled against the applicant.
However, the European Court has established somewhat different criteria for the right to family life of aliens convicted of criminal acts. In Boultif v. Switzerland, a case of deportation of a non-national whose Swiss wife would be faced with serious difficulties in his country of origin, the Court found that their separation would constitute a violation of the right to family life. However, in this case the Court clearly stated that the mere fact that some person may be exposed to difficulties in the country of his/her spouse does not exclude the possibility of deportation.
Applying the criteria from the Boultif case, the European Court came to a different conclusion in Üner v. the Netherlands, finding that the decision to deport the applicant to Turkey did not constitute a breach of the right to family life of the applicant and his minor children. The European Court reached this conclusion because it determined, among other things, that the applicants children wish to go to Turkey with their father, that they will have no problem with returning to the Netherlands, since they have Dutch citizenship, and that this meant their family life with their father would not be severed, while they would be able to maintain contact with their family in the Netherlands.
As can be seen from the above, human rights standards in matters of immigration are limited to the protection of the person to be deported, extradited or returned to a country from torture and inhumane treatment, as well as to the protection of family life of that person or members of his/her family, and take into account a series of factors mentioned previously. Among those, the right of the child to family life with the parent facing deportation, extradition or return to country of origin, or the right to an uninterrupted relationship with that parent are taken into accountIn that context, it should be mentioned that the Convention on the Rights of the Child does not contain explicit provisions on the prohibition of expulsion and is, therefore, not applicable.
Revoking BiH Citizenship and Expulsion
The procedure of review of decisions on the naturalisation of aliens in BiH, and the related revoking of citizenships is governed by the BiH Law on Citizenship imposed by the High Representative in 1997.This Law, which has undergone a number of changes, clearly defines the mandate of the State Committee for review of naturalisation decisions pertaining to foreign nationals and exhaustively enumerates cases in which citizenship can be revoked. The Committee is not authorised to examine the alleged illegalities in the process of granting citizenships, since that is exclusively the jurisdiction of prosecutors and other state bodies. Even if someone was granted citizenship due to illegal activities within competent state bodies, this cannot be a reason to retain citizenship if the Committee finds grounds for revoking said citizenship. Whether criminal proceedings will be initiated against those who made illegal decisions to grant citizenships is another matter entirely and cannot affect the decision to revoke illegally acquired citizenships.
Although its establishment was stipulated already in 1997, the Committee was formed and begun working on citizenship review only in March 2006. Since then, its activities have been constantly in the public spotlight, and particular attention was given to the revoking of citizenships of the so-called mujahideen, which gave the wrong impression of only them ever being focused on by the Committee. However, the results of the review presented by the Committee to the Parliamentary Assembly of BiH in September this year show beyond doubt that the Committee dealt with all cases of citizenship being granted to foreign nationals, regardless of their country of origin. In its report to the Parliamentary Assembly of BiH, the Committee stated that the total number of citizenships taken away was 613, while 530 persons retained citizenship. Citizenship was taken away mostly from people originating from Turkey (137), Egypt (63), Syria (49), Algiers (37), Russia (23) and the Ukraine (15).
As for the procedure, it is important to note that even though according to the practice of the European Court, the procedure of taking away citizenship is not subject to guarantees of a fair trial, which means that there is no obligation to ensure access to court for the purposes of contesting the decision to take away citizenship, the Law on Citizenship stipulates that court proceeding can be initiated against Committee decisions. This provided more extensive protection of human rights in comparison to the requirements of the European Convention in this context.
When citizenship is revoked, and when that decision is confirmed by a court, the person in question acquires the status of an alien and is subject to the Law on the Movement and residence of Aliens and Asylum in BiH which entitles that person to seek a residence permit or asylum. If neither is granted, the person faces deportation. The Law stipulates the possibility of granting residence for humanitarian reasons, according to which even persons denied asylum can be granted residence if it can be proven that there is a danger of deportation to a country containing the threat of possible inhumane treatment (non-refoulement). In these proceedings, aliens can invoke the protection of rights from the European Convention, and especially the right to family life and the prohibition of inhumane treatment, but their allegations must be reinforced by strong arguments and unambiguous evidence pointing to their solid grounds.
To date, the Constitutional Court has decided on the merits of only one case concerning allegations about the violation of the right to family life and the prohibition of inhumane treatment as related to deportation. This was case AP-1788/05, in which the appeal of the Moroccan Said Atmani was turned down. His Bosnian-Herzegovinian citizenship granted in 1995 was revoked and he appealed this decision alleging violations of his right to family life and the principle of prohibition of inhumane treatment. In this case, the Constitutional Court referred to the case law of the European Court, among others, and concluded that it was not proven that there are obstacles for him to lead a family life with his wife, who is a citizen of Bosnia and Herzegovina, in Morocco or some other country.
No Generalisations
As a state party to international instruments for the protection of human rights mentioned in this text, Bosnia and Herzegovina has powers of discretion in matters of immigration, but is also subject to restrictions in the exercise of the right to control entry, residence and deportation of foreign nationals from its territory. The BiH Law on the Movement and Residence of Aliens and Asylum regulates these matters in a way that is in line with the principles of protection of human rights and entails legislative guarantees of non-discrimination. The reasons set out in the Law that enable expulsion measures are certainly within the state’s public interest, and they include reasons of national security, upholding the legal order, etc.Even though neither the Law nor its bylaws contain provisions obliging bodies conducting the procedure of expulsion to mind the protection of rights from the European Convention, this does not absolve them of such concerns when making decisions.They are obliged by Article II/2 of the Constitution of Bosnia and Herzegovina according to which the rights and freedoms from the European Convention are directly applicable in Bosnia and Herzegovina.Judicial protection provided in these procedures is an additional guarantee against arbitrary decision-making and the possibility of neglecting arguments related to human rights and freedoms violations.
We can conclude that this legal regulation in Bosnia and Herzegovina creates the formal framework for the adequate protection of human rights and freedoms in immigration procedures. The matter of whether the principles of human rights and freedoms will be upheld in each concrete case cannot be resolved until each procedure is brought to an end, i.e. until decisions are made on the merits of each case, which can then be contested before the Constitutional Court of Bosnia and Herzegovina, and ultimately before the European Court for Human Rights. These cases should, therefore, not be generalised and the divided public atmosphere should not be “fuelled”, especially by the Bosnian-Herzegovinian media. They should also not be accorded political connotations, because these are often to the detriment of those who seek the protection of their human rights and freedoms in the procedures.