A number of instruments adopted under the auspices of the United Nations protect fundamental human rights. All citizens within the territory of signatory States and not just nationals should expect such rights to be safeguarded, this would therefore include migrants.

In relation to migration and freedom of movement specifically, Article 13 (1) of the Universal Declaration of Human Rights, (1948), states, "everyone has the right to freedom of movement and residence within the borders of each State". Paragraph 2 states that "everyone has the right to leave any country, including his own, and to return to his country". This provision is not legally binding but could arguably be classed as customary international law. Although it guarantees freedom of movement this is limited to movement within a particular country, and not between different countries.

Article 12 of the International Covenant on Civil and Political Rights, (1966), provides persons lawfully within the territory of a State with "the right to liberty of movement and freedom to choose his residence". It also reiterates in paragraph 2 the right to freedom to leave any country including ones own. The freedom to leave and return to a country is limited to a person’s country of nationality or residence; people are therefore not entitled to exercise this right in a country they have migrated to in which they have no lawful right to remain.

The guarantee in Article 12 includes the right to choose the country of destination. The Human Rights Committee, the Treaty monitoring body of the Covenant, have found that this right would also apply to aliens being expelled from a State who should also be able to choose their country of destination. As international travel requires appropriate documents the obligation on the State includes a guarantee that such documents will be provided. The rights guaranteed by Article 12 must be free from public and private interference and the right to choose one’s own residence includes protection from all forms of internal displacement and would prevent States allowing entry or stay in only a defined part of the State or territory.

Article 12, paragraph 3 states that such rights should not be subject to any restrictions except those provided by law, which are necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and should be consistent with other rights within the Covenant. States must not place restrictions on this provision that would impair the essence of this right and any restrictions must be necessary and proportionate to achieving such protection. As restrictions must be consistent with the other rights of the Covenant they must not violate the fundamental principles of equality and non-discrimination. The final paragraph of Article 12 prohibits arbitrary deprivation of the right to enter ones own country, which would be their country of nationality, the term ‘nationality’ should be interpreted in a broad sense and includes situations of special ties including where a person has been stripped of their nationality or arbitrarily deprived of it.

The protection of Article 12 would not apply to those unlawfully present within a State, this would include irregular migrant workers. However the Human Rights Committee have found that migrants whose status has been regularised would be entitled to the guarantees of Article 12.

Analysis provided by: Anisa Niaz LLM (Public Law), United Kingdom.