Reducing Ethnic Profiling in the European Union - Open Society ...

and the legal status of third country nationals. But third country nationals enjoy thesame protection from discrimination on grounds of racial or ethnic origin as others.The exclusion of nationality discrimination leaves a significant gap in protectionagainst discrimination, both in the realm of border controls and immigration enforcement,but also in as much as immigration control drives a certain amount of ethnicprofiling in domestic policing. In current law enforcement practices, it appears that attimes allegedly legitimate differences based in nationality are in fact forms of discriminationthat are based on race or ethnic origin—as with police profiling of minoritiesin their use of identity checks and stops to detect illegal immigrants. This exemptionof the field of immigration from the prohibition against discrimination on grounds ofracial or ethnic origin has been misused by member states to evade their obligationto ensure that asylum and immigration laws and practices are neither discriminatorynor have discriminatory effects, and has prevented EU law from fully addressing theproblem of profiling.The permissibility of ethnic profiling in immigration contexts is an area that isevolving in national and international rulings. In 2001, the European Court of HumanRights rejected a claim of discrimination in a case—Cissé v. France—that involvedenforcement of French immigration laws. 277 But the thinly-reasoned judgment did notmake clear whether or to what extent this context was relevant to its decision. TheEuropean Court has condemned in strong terms the use of immigration grounds as apretext for other purposes. 278National courts in Europe have taken divergent approaches to the questionwhether there is greater scope for ethnic profiling in an immigration enforcementcontext. In a 2001 ruling in the case of Rosalind Williams-Lecraft, the Spanish ConstitutionalCourt accorded the police broad latitude, ruling that it is permissible for thepolice to “use the racial criterion as merely indicative of a greater probability that theinterested party was not Spanish.” 279 The court reasoned that when police controls servethe purpose of “requiring that foreigners in Spanish territory are obliged to have documentationwhich proves their identity and their legal status in Spain …. specific physicalor ethnic characteristics can be taken into consideration as reasonably indicative of thenational origin of the person who has them.” A dissenting judge noted that using raceas a proxy for nationality makes little sense in what is “already a multi-racial society.” 280Williams-Lecraft appealed this decision before the United Nations Committeeon Human Rights. In June 2009, the HRC ruled in favor of Williams-Lecraft, findingthat she had been singled out for an identity check solely on the ground of her racialcharacteristics and that in making these characteristics the decisive factor in her beingsuspected of unlawful conduct, Spain was violation of article 26, read in conjunctionwith article 2(3), of the International Covenant on Civil and Political Rights.REDUCING ETHNIC PROFILING IN THE EUROPEAN UNION 197