CERD General Recommendation XXX on Discrimination Against Non Citizens

Adopted on 1 October 2002

[The present general recommendation replaces general recommendation XI (1993)]

The Committee on the Elimination of Racial Discrimination,

Recalling the Charter of the United Nations and the Universal Declaration of
Human Rights, according to which all human beings are born free and equal in dignity
and rights and are entitled to the rights and freedoms enshrined therein without
distinction of any kind, and the International Covenant on Economic, Social and
Cultural Rights, the International Covenant on Civil and Political Rights and the
International Convention on the Elimination of All Forms of Racial Discrimination,

Recalling the Durban Declaration in which the World Conference against

Racism, Racial Discrimination, Xenophobia and Related Intolerance, recognized that
xenophobia against non-nationals, particularly migrants, refugees and asylum-seekers,
constitutes one of the main sources of contemporary racism and that human rights
violations against members of such groups occur widely in the context of
discriminatory, xenophobic and racist practices,

Noting that, based on the International Convention on the Elimination of All

Forms of Racial Discrimination and general recommendations XI and XX, it has
become evident from the examination of the reports of States parties to the
Convention that groups other than migrants, refugees and asylum-seekers are also of
concern, including undocumented non-citizens and persons who cannot establish the
nationality of the State on whose territory they live, even where such persons have
lived all their lives on the same territory,

Having organized a thematic discussion on the issue of discrimination against

non-citizens and received the contributions of members of the Committee and States
parties, as well as contributions from experts of other United Nations organs and
specialized agencies and from non-governmental organizations,

Recognizing the need to clarify the responsibilities of States parties to the

International Convention on the Elimination of All Forms of Racial Discrimination
with regard to non-citizens,

Basing its action on the provisions of the Convention, in particular article 5,

which requires States parties to prohibit and eliminate discrimination based on race,
colour, descent, and national or ethnic origin in the enjoyment by all persons of civil,
political, economic, social and cultural rights and freedoms,

Affirms that:
 I. Responsibilities of States parties to the Convention

1. Article 1, paragraph 1, of the Convention defines racial discrimination. Article 1,

paragraph 2 provides for the possibility of differentiating between citizens and non-
citizens. Article 1, paragraph 3 declares that, concerning nationality, citizenship or
naturalization, the legal provisions of States parties must not discriminate against any
particular nationality;

2. Article 1, paragraph 2, must be construed so as to avoid undermining the basic

prohibition of discrimination; hence, it should not be interpreted to detract in any way
from the rights and freedoms recognized and enunciated in particular in the Universal
Declaration of Human Rights, the International Covenant on Economic, Social and
Cultural Rights and the International Covenant on Civil and Political Rights;

3. Article 5 of the Convention incorporates the obligation of States parties to prohibit

and eliminate racial discrimination in the enjoyment of civil, political, economic,
social and cultural rights. Although some of these rights, such as the right to
participate in elections, to vote and to stand for election, may be confined to citizens,
human rights are, in principle, to be enjoyed by all persons. States parties are under an
obligation to guarantee equality between citizens and non-citizens in the enjoyment of
these rights to the extent recognized under international law;

4. Under the Convention, differential treatment based on citizenship or immigration

status will constitute discrimination if the criteria for such differentiation, judged in
the light of the objectives and purposes of the Convention, are not applied pursuant to
a legitimate aim, and are not proportional to the achievement of this aim.
Differentiation within the scope of article 1, paragraph 4, of the Convention relating to
special measures is not considered discriminatory;

5. States parties are under an obligation to report fully upon legislation on non-
citizens and its implementation. Furthermore, States parties should include in their
periodic reports, in an appropriate form, socio-economic data on the non-citizen
population within their jurisdiction, including data disaggregated by gender and
national or ethnic origin;

Recommends,

Based on these general principles, that the States parties to the Convention, as
appropriate to their specific circumstances, adopt the following measures:

II. Measures of a general nature

6. Review and revise legislation, as appropriate, in order to guarantee that such

legislation is in full compliance with the Convention, in particular regarding the
effective enjoyment of the rights mentioned in article 5, without discrimination;
7. Ensure that legislative guarantees against racial discrimination apply to non-citizens
regardless of their immigration status, and that the implementation of legislation does
not have a discriminatory effect on non-citizens;

8. Pay greater attention to the issue of multiple discrimination faced by non-citizens,

in particular concerning the children and spouses of non-citizen workers, to refrain
from applying different standards of treatment to female non-citizen spouses of
citizens and male non-citizen spouses of citizens, to report on any such practices and
to take all necessary steps to address them;

9. Ensure that immigration policies do not have the effect of discriminating against
persons on the basis of race, colour, descent, or national or ethnic origin;

10. Ensure that any measures taken in the fight against terrorism do not discriminate,
in purpose or effect, on the grounds of race, colour, descent, or national or ethnic
origin and that non-citizens are not subjected to racial or ethnic profiling or
stereotyping;

III. Protection against hate speech and racial violence

11. Take steps to address xenophobic attitudes and behaviour towards non-citizens, in
particular hate speech and racial violence, and to promote a better understanding of
the principle of non-discrimination in respect of the situation of non-citizens;

12. Take resolute action to counter any tendency to target, stigmatize, stereotype or
profile, on the basis of race, colour, descent, and national or ethnic origin, members of
"non-citizen" population groups, especially by politicians, officials, educators and the
media, on the Internet and other electronic communications networks and in society at
large;

IV. Access to citizenship

13. Ensure that particular groups of non-citizens are not discriminated against with
regard to access to citizenship or naturalization, and to pay due attention to possible
barriers to naturalization that may exist for long-term or permanent residents;

14. Recognize that deprivation of citizenship on the basis of race, colour, descent, or
national or ethnic origin is a breach of States parties' obligations to ensure non-
discriminatory enjoyment of the right to nationality;

15. Take into consideration that in some cases denial of citizenship for long-term or
permanent residents could result in creating disadvantage for them in access to
employment and social benefits, in violation of the Convention's anti-discrimination
principles;
16. Reduce statelessness, in particular statelessness among children, by, for example,
encouraging their parents to apply for citizenship on their behalf and allowing both
parents to transmit their citizenship to their children;

17. Regularize the status of former citizens of predecessor States who now reside
within the jurisdiction of the State party;

V. Administration of justice

18. Ensure that non-citizens enjoy equal protection and recognition before the law and
in this context, to take action against racially motivated violence and to ensure the
access of victims to effective legal remedies and the right to seek just and adequate
reparation for any damage suffered as a result of such violence;

19. Ensure the security of non-citizens, in particular with regard to arbitrary detention,
as well as ensure that conditions in centres for refugees and asylum-seekers meet
international standards;

20. Ensure that non-citizens detained or arrested in the fight against terrorism are
properly protected by domestic law that complies with international human rights,
refugee and humanitarian law;

21. Combat ill-treatment of and discrimination against non-citizens by police and

other law enforcement agencies and civil servants by strictly applying relevant
legislation and regulations providing for sanctions and by ensuring that all officials
dealing with non-citizens receive special training, including training in human rights;

22. Introduce in criminal law the provision that committing an offence with racist
motivation or aim constitutes an aggravating circumstance allowing for a more severe
punishment;

23. Ensure that claims of racial discrimination brought by non-citizens are

investigated thoroughly and that claims made against officials, notably those
concerning discriminatory or racist behaviour, are subject to independent and
effective scrutiny;

24. Regulate the burden of proof in civil proceedings involving discrimination based
on race, colour, descent, and national or ethnic origin so that once a non-citizen has
established a prima facie case that he or she has been a victim of such discrimination,
it shall be for the respondent to provide evidence of an objective and reasonable
justification for the differential treatment;

VI. Expulsion and deportation of non-citizens

25. Ensure that laws concerning deportation or other forms of removal of non-citizens
from the jurisdiction of the State party do not discriminate in purpose or effect among
non-citizens on the basis of race, colour or ethnic or national origin, and that non-
citizens have equal access to effective remedies, including the right to challenge
expulsion orders, and are allowed effectively to pursue such remedies;

26. Ensure that non-citizens are not subject to collective expulsion, in particular in
situations where there are insufficient guarantees that the personal circumstances of
each of the persons concerned have been taken into account;

27. Ensure that non-citizens are not returned or removed to a country or territory
where they are at risk of being subject to serious human rights abuses, including
torture and cruel, inhuman or degrading treatment or punishment;

28. Avoid expulsions of non-citizens, especially of long-term residents, that would

result in disproportionate interference with the right to family life;

VII. Economic, social and cultural rights

29. Remove obstacles that prevent the enjoyment of economic, social and cultural
rights by non-citizens, notably in the areas of education, housing, employment and
health;

30. Ensure that public educational institutions are open to non-citizens and children of
undocumented immigrants residing in the territory of a State party;

31. Avoid segregated schooling and different standards of treatment being applied to
non-citizens on grounds of race, colour, descent, and national or ethnic origin in
elementary and secondary school and with respect to access to higher education;

32. Guarantee the equal enjoyment of the right to adequate housing for citizens and
non-citizens, especially by avoiding segregation in housing and ensuring that housing
agencies refrain from engaging in discriminatory practices;

33. Take measures to eliminate discrimination against non-citizens in relation to

working conditions and work requirements, including employment rules and practices
with discriminatory purposes or effects;

34. Take effective measures to prevent and redress the serious problems commonly
faced by non-citizen workers, in particular by non-citizen domestic workers, including
debt bondage, passport retention, illegal confinement, rape and physical assault;

35. Recognize that, while States parties may refuse to offer jobs to non-citizens
without a work permit, all individuals are entitled to the enjoyment of labour and
employment rights, including the freedom of assembly and association, once an
employment relationship has been initiated until it is terminated;
36. Ensure that States parties respect the right of non-citizens to an adequate standard
of physical and mental health by, inter alia, refraining from denying or limiting their
access to preventive, curative and palliative health services;

37. Take the necessary measures to prevent practices that deny non-citizens their
cultural identity, such as legal or de facto requirements that non-citizens change their
name in order to obtain citizenship, and to take measures to enable non-citizens to
preserve and develop their culture;

38. Ensure the right of non-citizens, without discrimination based on race, colour,
descent, and national or ethnic origin, to have access to any place or service intended
for use by the general public, such as transport, hotels, restaurants, cafés, theatres and
parks;

39. The present general recommendation replaces general recommendation XI (1993).