RT info:eu-repo/semantics/doctoralThesis
T1 La expulsión de extranjeros en el derecho internacional, europeo y español: el derecho de la persona frente a la soberanía de los estados
A1 Hernández Rodríguez, Ana
A2 Universidad de Valladolid. Escuela de Doctorado
K1 Migración
K1 Migrations
K1 Migraciones
K1 5605.0 Derecho Público
AB Freedom of movement arises naturally at the moment when man begins to move, although the wandering condition of our origins began to be tempered with the arrival of agriculture and prosperity, as the main anchor of homo migrantis. Since then, it has evolved at the pace set by economic, political, demographic, technological and even climatic changes, in a globalized context and with unpredictable circumstances.However, despite the fact that this reality has existed since man does, the concept of migrant has not found reflection in legal terms, the closest thing being the concept of foreigner that has defined international Law, in a way that is not especially complex, considering as such a person who is not a national of a specific State, which would cover a multitude of categories with different nuances such as the stateless person, the asylee, the refugee, the applicant for international protection or humanitarian protection and also all types of migrant.At the same time, in parallel with the evolution of the movement of people, distrust towards foreigners has also been growing and with it, the temptation to retreat into oneself, which is why, as we intend to defend in this work, it is necessary defend the fabric of a consistent regulatory framework that can protect the multitude of situations that are generated, to also appease the discriminatory temptation towards foreigners. And, as we will see, in the current legal configuration of the States, it is common to find what Javier de Lucas has called the institutionalization of exclusion. Among all the existing forms of discrimination, the one that we consider the most important because it is allowed against nationals is the application of expulsion exclusively for non-nationals.To defend the need to change and provide a response to this status quo, we will start from the concept of freedom of movement, understood as the right to leave any country and return to one's own, but we are going to study another approach to it, focusing on its most extreme limitation through the capacity to expel foreigners, as well as the limits on its exercise posed by existing international regulatory instruments. Specifically, we are going to focus on international provisions as instruments that can serve to limit this power of the State, mainly in the field of human rights.Thus, we will review the main international instruments that protect against discrimination, passing through the prohibition of expulsion or return that the principle of non-refoulement entails, understanding that persecution is another form of discrimination, to lead to the way in which that the expulsion of foreigners is regulated in Spanish regulations.The power to regulate the right of admission, understood as part of the sovereign power of the States, as well as the expulsion of foreigners, has been putting a legal strain on the rights of the individual, which, although they have been evolving, still have to be consolidate with regard to foreigners. In this work we expose how expulsion constitutes a pending issue without unanimous regulation by the international community, despite attempts by the United Nations, whose main attempt at regulation has not achieved sufficient consensus. The truth is that there is currently no legal instrument that contemplates this aspect. Therefore, this work aims, among others, to expose the need to approve a tool, either the one attempted by the United Nations, or another new one, that includes a minimum regulatory network that stops or at least serves as a parachute, in the face of numerous expulsive actions. of States on non-national individuals who may violate the rights of the person.To this end, we have carried out a regulatory, jurisprudential and doctrinal study divided into three parts. The first, focused on the authentic meaning of freedom of movement in its subjective and objective scope, to lead to the delimitation of the concept of expulsion and related figures.Once we have considered how in international Law we find international instruments (even if not through specifically binding norms) that can act as limits on the ability of States to expel foreigners, we are going to focus on how in the field of human rights we find greater protection when it comes to delimiting the obligations that States must comply with foreigners. Specifically, we will focus on discrimination, since, and as the second premise of this work, nationality is the only reason for discrimination accepted in the internal regulations, as we will see with regard to expulsion from the territory.Although equality and non-discrimination are considered, in a generic way, as principles, and in a concrete way, as rights, this binomial, normally inseparable, would constitute the basis on which the recognition of the rights of every person is based "without distinction of race, color, sex, language, religion, political or other opinion, national or social origin, economic position, birth or any other condition. In international law prior to the United Nations Charter, there were no positivized universal norms on the treatment that a State could give to foreigners, beyond regulating their legal position in accordance with a minimum standard of justice and civilization of general international law (respect for their personal integrity, their property, their general right not to be discriminated against or arbitrarily treated, etc.). But such obligations were due to the nationality of the foreigner in question, and not directly to the individuals, since they "were not holders of subjective rights in traditional international law."After studying the expulsion of foreigners in the international legal system from the perspective of the protection offered by the instruments that protect against discrimination, in the second part of this work we will study the principle of non-refoulement of applicants for international protection. Both from the jurisprudential and doctrinal point of view on the approach provided by asylum and refuge, and from the most absolute protection provided by the instruments that limit inhuman, cruel treatment or torture, the only absolute protection that a foreign person has. in the face of the threat of expulsion when it comes into conflict with this type of treatment. Herein lies the third premise of this thesis, which finds as the only absolute protection that of the legal instruments that protect against the threat of this type of threat of cruel, inhuman or degrading treatment.Finally, in the third part of this work we will analyze how the concept of expulsion is delimited in our internal regulations, and its differences with related figures such as "return" or "rejection at border"; Of course, the latter, contemplated as such in our current regulations only to speak of a containment measure in the event of a specific illegal entry attempt in Ceuta and Melilla. Reality shows that the massive entry into our borders often causes the “rejection at the border” of foreigners "without having taken into account both national and international legal provisions", as the Ombudsman has concluded in his report on the complaint raised due to the seriousness of some events in 2022 in which dozens of people died. We will raise the problem of what is known as “hot returns”, also called “collective expulsions”, that is, automatic returns, without individualized consideration, without judicial control and without respecting international obligations.Regarding this reality, we analyze in this work the treatment of a figure that is not sufficiently clear, highlighting, first of all, the statement that in our immigration regulations there is no explicit legal reference on this type of practices, that is, returns. collective. Likewise, we are going to explain how this type of forced departure of foreigners would, in any case, be returns, not expulsions in accordance with our regulations. Finally, we will analyze the turn given by the ECtHR in its Judgment of February 13, 2020 referring to collective returns in Ceuta and Melilla in the N.D. case. and N.T. c. Spain, which will serve as a basis for proposing alternative solutions to those offered by the Court.To conclude, we will explain why delimiting these different concepts is essential in order to correctly apply legislation that, on the other hand, should be more rigorously adapted to current circumstances.To conclude, we will explain why delimiting these different concepts is essential in order to correctly apply legislation that, on the other hand, should be more rigorously adapted to current circumstances. Likewise, we will point out where it is necessary to strengthen the internal regulations, proposing, instead of temporary modifications necessitated by the circumstances, regulatory adjustments that rigorously cover all possible cases in order to not leave without legal protection actions that are being carried out in practice. out, as is being revealed in the light of recent jurisprudence, both national and European.
YR 2024
FD 2024
LK https://uvadoc.uva.es/handle/10324/67812
UL https://uvadoc.uva.es/handle/10324/67812
LA spa
NO Escuela de Doctorado
DS UVaDOC
RD 28-nov-2024