ICTURINACTION□ GIBRALTAR ICTUR in Action: Gibraltar On ICTUR inquiry 12 October on presented thesubject 2009 the of a the delegation findings human of rights from its ICTUR presented the findingsof its inquiry on thesubjectofthehumanrights of the Moroccancommunity in Gibraltar. We had been commissioned to preparethe report earlierthisyearby theGibraltar District Office ofUnitetheunion.The mainissuesofconcern to ICTURare by now well knownand widely reported. Theyare: ■ Naturalisation: allegations aboutslow,arbitrary , anddiscriminatory processing ofapplications forcitizenship; ■ Political Rights: denialoftheright tovoteto peoplewho havebeen living, working, and paying taxesinGibraltar forup to40 years; ■ Publicservices: ineligibility forcertain welfare benefits, anddiscrimination inrelation to health care; ■ Housing: discriminatory provision ofpublic housing andpoorquality ofrented accommodation ; and ■ Family re-unification: profound difficulties withvisasandtravel arrangements leadingto prolonged separation offamilies. In addition to thesespecific problemareas,we encountered anextraordinary lackoftransparency andsecrecy aboutmatters that oughttobe easily accessible.We experiencedgreat difficulty in obtaining accessto copiesofthevariousunpublished 'schedules' and 'discretionary schemes' that establish entitlements tocertain publicservices. In thereport, we described thediscrimination experienced bytheMoroccancommunity to be of a 'systemic nature'. Itisimportant toemphasise, that thediscriminationagainst Moroccan workers thatwe encounteredis nota problemin theprivate sector, in employment, inthestreet, orinsocialinteractions; rather itis a problem stemming directly from the publicauthorities. The Moroccans complain - for example -that they arebarred from thesubsidised publichousing usedbyGibraltarians andcanlive onlyinexpensive private sector rental accommodation (ifthey can afford it,whichmanycannot) orinbadly-maintained, dirty, infested, unsafe and overcrowded 'hostels' that a member ofourdelegation branded 'theDisgrace on theRock'. The Legal Position In order to ensurethat thelegalpotential should be investigated toitsfullest potential ICTURcommissioned a formal LegalAdvicefrom one ofthe UK's leading discrimination barristers, Karon Monaghan, QC. Giventhesystemic nature ofthe discrimination experienced byMoroccan workers, the mostconvenient routeforaddressing it is through proceedings in judicialreview.We are advisedthat: ■ Therearegood prospects ofsucceeding in legalactionundersections 1 and7 ofthe Gibraltar Constitution ■ Therearegood prospects ofsucceeding in legalactionunderdomestic (Gibraltarian) law implementing theRaceDirective 2000/43/EC, namely theEqualOpportunities Ordinance 2006(whenreadwithConvention on the Elimination ofRacialDiscrimination andthe RaceDirective 2000/43/EC) ■ Theremaybe violations oftheterms ofthe EU-Morocco Agreement, whichinmaterial respects is directly effective, as wellas the RaceDirective 2000/43/EC (whenreadwith Convention on theElimination ofRacial Discrimination) . Thereare also a numberof provisions of the EuropeanConvention on HumanRights thatare engaged by the problems encounteredby Moroccan workersin Gibraltar, and we are advisedthat there aregood prospects ofsucceedinginlegalactionunderArticles 8 and 14,ECHR and underArticles 2 and 3, ProtocolNo 1 in respect ofthetreatment experienced byparticular Moroccan workers, including that relating toimmigration status, political rights, accesstopublicservices ,housing, andfamily visits. Fortheavoidance of doubt,we are also advisedthatthereis no question abouttheability oftheMoroccan workersto relyon Convention rights and to seek to enforce them inthenormal way.Itis unquestionablythecase that theECHRappliestoGibraltar. Towardsa Solution Ourdiscussions withlocalactors, including representatives of the threemain politicalparties, encouragedus to believe thatthese problems werenotinsurmountable, andthat a political resolutionwould be a distinct possibility, thusrendering further legalworkunnecessary. The decisionofthetripartite ministerial forum securing a negotiated solutionto at leastone of themajor concerns oftheMoroccan community provides yet further encouragement forthisview.To thisend we setoutbelow30 recommendations foraction to theGovernments of Gibraltar, Spainand the United Kingdom. Recommendations To theBritishGovernment ■ torecognise thecontribution overmany years madebytheMoroccan community towards themaintenance ofan important British military facility; ■ toengagetheGibraltar Government indiscussionswitha viewtoensuring that rapid progress is madetoachievefull compliance withallhumanrights obligations inrespect of We encountered an extraordinary transparencyand secrecy about mattersthat oughtto be easily accessible. Discrimination against the Moroccan community is systemic DANIEL BLACKBURN IsDirector of ICTUR KDEWING isProfessor of Public Law atKing's College, University of London and a Vice President of ICTUR JONATHAN JEFFRIES is Lecturer in trade union education atCHENEL college, London Page 3 Volume 16Issue 4 2009 INTERNATIONAL union rights IA good pursue barrister of the discrimination different that inquiry prospects complaints a there advised number leading team legal are to discrimination barrister advised the inquiry team thatthereare good prospects to pursue a number ofdifferent legal complaints theMoroccan community; ■ toreview thesituation on an annualbasisand tosolicit contributions from allrelevant parties, including Unite Gibraltar andtheMoroccan associations, andtopublish thefindings ofthis review. ■ torecognise that allrelevant naturalisation criteria andapplication processes shouldbe published , transparent andaccessible, andcommunicatethis viewtotheGibraltar Government; ■ torecognise theprinciple that longterm residentsareentitled tovote;andtoliaisewith theGibraltar government witha viewtoimplementing thisprinciple, andifnecessary amend British law; ■ toliaisewiththeGibraltar andSpanish Governments inorder toensurethat thetransit visasproposedbytheTripartite Ministerial Forum shouldbe madeavailable withimmediateeffect . To theGibraltar Government On naturalisation ■ toensurethat allrelevant rules, criteria and procedural information arepublished, transparent ,andaccessible; ■ toreview theexisting rulesandpolicieswitha viewtoeliminating anyirrelevant barriers to applicants (suchas inappropriate language tests); ■ toputinplacea timetable fordealing with applications speedily, transparently, andconsistently . Onpolitical...
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