Minorities need not be citizens to claim respect for and protection of their identities. However, their residency status may impact on the policy measures taken by the country to fulfill minority rights. Minority rights are human rights and cannot be restricted to citizens only. The UN Human Rights Committee (HRC) has stated that minority rights protection, pursuant to article 27 of the ICCPR, must be applied to all individuals within the jurisdiction of a State party, including, inter alia, non-permanent residents, migrant workers and even visitors.² The former UN Working Group on Minorities (replaced in 2007 by the UN Forum on Minority Issues) noted that provisions of the UNDM were inspired by article 27 and thus may apply to non-citizens as well (Eide 2001, paragraph 9).

Countries have some justification for taking greater positive measures for certain minority groups rather than others. This is typically measured by the length of residency of the minority group. Some minority groups have been historically resident in a country, while others may have arrived more recently as immigrants, migrant workers or refugees. More recently arrived groups are entitled, at a minimum, to non-discrimination and to practice freely their culture, language or religion. For example, immigrant groups may form their own community organisations and speak their own language without interference. Historically resident minorities often make further claims for positive measures, such as additional resources for education or for political participation. A State should provide access to primary education for all children, including migrants and refugees. However, historically resident minorities may have stronger claims for positive measures by the State, such as public funds for education in the child’s mother tongue. The former UN Working Group on Minorities has suggested:

The best approach appears to be to avoid making an absolute distinction between “new” and “old” minorities by excluding the former and including the latter, but to recognize that in the application of the Declaration [on Minorities] the ‘old’ minorities have stronger entitlements than the ‘new’. (Eide 2001, paragraph 11)

A key question is at what point the ‘new’ minority becomes entitled to increased positive measures? In considering this transition, it is important to determine whether a group’s lack of full ‘minority’ status is due to provisions that are unduly restrictive and discriminatory. Other relevant factors include the population size of the minority community and their corresponding entitlement to public resources; and the practicalities of providing positive measures (e.g. if the community is territorially concentrated this may facilitate measures or if the costs are low the State may be more willing to take further steps in fulfilling rights even for newly arrived groups). At the regional level, the Advisory Committee of the Council of Europe Framework Convention for the Protection of National Minorities (FCNM) takes the approach that the FCNM does not necessarily apply in its entirety to all ‘new’ minorities, but that certain provisions (e.g. article 6)³ should be applied on an article-by-article basis, where appropriate.

Minorities do not have to be citizens to claim basic minority rights Historically resident minorities may have claims to greater positive measures than more recently arrived minorities