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minorities must be established within the national territory for at least a century.
6
The approach of some other states is based on the rule of three generations.
7
With regard to long-term ties between a national minority and the state,
a number of European countries reserve some typical minority rights (e.g. the right to
use a minority language, the right to education in a minority language and access
to specific financial support) only for traditional national minorities and their
members. Members of new minorities may not invoke similar rights at the national
level. A key question is to what extent is the distinction between traditional and new
minorities compatible with the prohibition of discrimination on grounds of race,
color or ethnic origin.
3. New Minorities and Citizenship
Citizenship is the crucial point of reference for international and national migration
law. Conditions of entry, residence rules, rules governing access to the labor market
or access to social benefits and conditions concerning the termination of residence are
essentially linked to the citizenship of foreigners. In the light of communitarisation
of European migration policy, we may point not only at the fundamental dichotomy
of EU citizens and third-country nationals, but also at different legal regimes in the
fields of visa waiver agreements,
8
association agreements or lists of safe third countries
and safe countries of origin. On the basis of bilateral and multilateral agreements,
secondary EU law and national legislation, a very complex structure of equality and
inequality between citizens of different countries has been established.
The relationship between the access of foreigners to state territory and the
principle of non-discrimination has been subject to profound academic research.
9
With a view to the decisions and recommendations of the UN-Committee for
Human Rights and the Committee on the Elimination of Racial Discrimination
it may be concluded that differences in treatment that are based on citizenship or
immigration status will be considered as prohibited discrimination, unless a State
Party draws such distinctions in accordance with a legitimate aim and the principle
of proportionality.
10
This concept of non-discrimination on grounds of nationality
applies naturally not only to the entry of an alien to the state territory (e.g. in the
context of family reunification), but also to his legal status during the stay.
6
See Section 1 of the Hungarian Minorities Act (Act No. LXXVII/1993).
7
See KÄLIN, WALTER.
Grundrechte im Kulturkonflikt. Freiheit und Gleichheit in der Einwanderungs-
gesellschaft
, Zürich, 2000, pp. 59-61.
8
Council Regulation (EC) No 539/2001 of 15 March 2001 listing the Non-EU Member Countries
whose nationals must be in possession of visas when crossing the external borders and those whose
nationals are exempt from that requirement.
9
POŘÍZEK, PAVEL.
Vstup cizince na území státu. Pohled mezinárodního, unijního a českého práva
.
Praha, 2013, pp. 136-217.
10
Ibid
., pp. 158-161.