Article 13 (1) of the Universal Declaration of Human Rights, (1948), states that "everyone has the right freedom of movement and residence within the borders of each State". This provision is reiterated in a more limited form in Article 12 (1) of The International Covenant on Civil and Political Rights, (1966) (ICCPR) an instrument which is legally binding. It provides for the right to liberty of movement and freedom to choose ones residence only for those ‘lawfully’ within the territory of a State. This would therefore exclude irregular migrants entering a State of which they are not a national, and would consequently not prohibit restrictions on the freedom of movement of such persons. In this respect the Human Rights Committee, in its General Comment No 27, restated its position that aliens whose status has been regularised must be considered to be lawfully within the territory for the purposes of Article 12.

Any restrictions on the right provided by a Article 12 must be justified under paragraph 3 of the provision which states that restrictions must be provided by law, necessary to protect national security, public order, public health or morals or the right and freedoms of others and must be consistent with the other rights recognised in 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 Convention Relating to the Status of Refugees, (1951), guarantees the right to freedom of movement to refugees lawfully in the territory of a Contracting State, and the right to choose their place of residence, subject only to any regulations applicable to aliens generally in the same circumstances. This provision as interpreted by States may in certain circumstances only be applied to recognised refugees, this would therefore exclude asylum seekers.

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