Immigration & Migrants’ Rights

OVERVIEW

Humans have migrated throughout history. People migrate for different reasons, such as reuniting with their families; seeking better economic opportunities; and escaping human rights abuses, including armed conflict, persecution, and torture. See Amnesty International, People on the Move. Migrants are generally entitled to the same human rights protections as all individuals, although States may limit migrants’ rights in some ways, such as with regard to voting and political participation. Many human rights treaties explicitly prohibit discrimination on the basis of national origin and require States to ensure that migrants’ human rights are equally protected. Additionally, like other particularly vulnerable groups, migrants have been given special protections under international law, to address situations where their rights are most at risk, such as in the workplace, in detention, or in transit. The protections afforded to a migrant, such as access to social security, will also depend on which treaties a State has ratified. See International Commission of Jurists, Migration and International Human Rights Law: A Practitioners’ Guide (2014), 54.

While States retain discretion to manage migrants’ exit and entry through their territory, human rights standards apply to this management. And, international legal principles limit who they can expel and under what circumstances. According to the principle of non-refoulement, States must not deport a migrant to a country where he or she is likely to face torture or serious human rights violations. 

Legal Protections

The following provisions prohibit discrimination on the basis of national origin, protect the right to a nationality, or address the special protections owed to migrants:

WHO IS A MIGRANT?

There is no clear, universally agreed upon definition of a migrant, sometimes referred to as international migrant. See Office of the United Nations High Commissioner for Human Rights (OHCHR), Migration and Human Rights: Improving Human Rights-Based Governance of International Migration (2013), 7. Some human rights bodies and experts differentiate between international migrants and internal migrants, also known as internally displaced persons, and between migrants who were forced to move and migrants who voluntarily moved to improve their situation. Therefore, generally, there are four categories of mobile persons to which international law may refer: people who have moved voluntarily within one State for the purpose of improving their situation, people who were compelled to move internally within one State, people who moved voluntarily across a border for the purpose of improving their situation, and people who were compelled to move across a border. This guide defines migrants as those who cross borders either because they were compelled to or because they chose to do so voluntarily.

Migrants include different categories of persons, including but not limited to migrant workers, migrants in an irregular situation, victims of human trafficking, and smuggled migrants. See id. Below is a brief overview of some of the categories of persons encompassed by the term migrant. The following categories are derived from international instruments or are commonly used by international organizations.

Migrant Worker

The International Convention on the Protection of the Rights of Migrant Workers and Members of their Families (ICRMW) defines migrant worker under Article 1 as “a person who is to be engaged, is engaged or has been engaged in a remunerated activity in a State of which he or she is not a national.” See International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (adopted 18 December 1990, entered into force 01 July 2003), 220 UNTS 3, art. 1. The ICRMW is the most comprehensive treaty on the rights of migrant workers and outlines migrants’ civil and political rights, as well as their economic, social, and cultural rights. Most of the provisions of the ICRMW are applicable to all migrant workers, both documented and non-documented, and their families, but some provisions specifically apply to irregular, or non-documented, migrants.

The Committee on Migrant Workers (CMW) noted that while the ICRMW outlines the minimum rights afforded to migrant workers, States may expand the scope of these rights, including with respect to irregular migrants. Additionally, the Committee stated that parties to the ICRMW must interpret their obligations towards migrants in accordance with other human rights treaties and other international treaties that they have ratified. See CMW, General Comment No. 2 on the rights of migrant workers in an irregular situation and members of their family, UN Doc. CMW/C/GC/2, 28 August 2013, para. 8 [hereinafter General Comment No. 2].

Besides the ICRMW, several other international instruments also provide protections for all human beings at work, including migrant workers. The ILO Migration for Employment Convention (Revised), 1949 (No. 97) protects migrant workers specifically, guaranteeing basic rights such as access to health care and the right to nondiscrimination. Several universal human rights treaties and the fundamental ILO Conventions provide for workers’ rights to just working conditions and equal pay, the ability to form and join trade unions, and access to social security. See, e.g., International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976), 993 UNTS 3, arts. 7-9; International Labour Organization Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) (adopted 9 July 1948, entry into force 4 July 1950), 68 UNTS 17; ILO Right to Organise and Collective Bargaining Convention, 1949 (No. 98) (adopted 1 July 1949; entry into force 18 July 1951), 96 UNTS 257; ILO Equal Remuneration Convention, 1951 (No. 100) (adopted 29 June 1951, entry into force 23 May 1953), 165 UNTS 303.

Non-documented Migrant Worker

An irregular migrant worker, or a non-documented migrant worker, may be defined as a person who enters a country without authorization for the purpose of obtaining employment. In 1975, the UN General Assembly requested UN organs and agencies to use the terms non-documented and irregular migrant workers instead of terms like “illegal migrant worker”. See UN General Assembly, Resolution 3449(XXX), Measures to ensure the human rights and dignity of all migrant workers, UN Doc. A/RES/32/120, 9 December 1975, para. 2. Since that time, other international bodies have made a point of using these terms to avoid the stigma attached to terms such as “illegal migrant.” See, e.g., Council of Europe Parliamentary Assembly, Resolution 1509 (2006), Human Rights of Irregular Migrants, 27 June 2006, para. 7. The International Convention on the Protection of the Rights of Migrant Workers and Members of their Families (ICRMW) also uses the terms non-documented or irregular migrant worker and defines them as a migrant who is not “authorized to enter, to stay and to engage in a remunerated activity in the State of employment . . .” See ICRMW, art. 5.

Irregular migrant workers have the same rights as other migrant workers under the ICRMW, and, as with other migrant workers, States may not, on the basis of his irregular status, deprive an irregular migrant worker the rights afforded to him under the ICRMW. See ICRMW, art. 25(3). As with documented or regular migrants, States must interpret their obligations towards irregular migrant workers in keeping with the international human rights treaties they have ratified. See General Comment No. 2, 28 August 2013, paras. 6, 8. The ICRMW does, though, balance the authority of the State to regulate the entry and exit of migrant workers with migrants’ rights. See id. at para. 13.

Several instruments also protect against the exploitation of migrant workers and forced labor or slavery. See, e.g., ILO Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143) (adopted 24 June 1975, entry into force 9 December 1978), 1120 UNTS 323; ILO Forced Labour Convention, 1930 (No. 29) (adopted 28 June 1930, entry into force 1 May 1932), 39 UNTS 55; Abolition of Forced Labour Convention, 1957 (No. 105) (adopted 25 June 1957, entry into force 17 January 1959), 320 UNTS 291; International Covenant on Civil and Political Rights (adopted 16 December 1966, entry into force 23 March 1976), 999 UNTS 171, art. 8.

Refugee

The 1951 Refugee Convention defines a refugee as a person who has a “well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality, and is unable to, or owing to such fear, is unwilling to avail himself of the protection of that country.” The 1951 Refugee Convention and its 1967 Protocol, as well as other international and regional instruments, outline refugees’ rights and States’ responsibilities with respect to refugees. States’ obligations include adhering to the principle of non-refoulement (not returning individuals to places where their lives would be threatened), providing access to fair and efficient asylum procedures, and ensuring respect for basic human rights.

For more information about asylum and the rights of refugees see IJRC’s Thematic Guide on Asylum & The Rights of Refugees.

Smuggled Person

Article 3(a) of the UN Protocol against the Smuggling of Migrants by Land, Sea and Air defines smuggling as the “procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry of a person into a State Party of which the person is not a national or a permanent resident.” Unlike trafficking in persons, smuggling does not require exploitation or coercion and necessarily requires the crossing of a border.

States that have ratified the Protocol have an obligation to provide protection and assistance to persons that have been smuggled, including by respecting a person’s right to life and the right not to be subjected to torture or other cruel, inhuman, or degrading treatment or punishment. States must also inform persons of their right to notify and communicate with consular officials in accordance with the Vienna Convention on Consular Relations. When providing assistance, States must take into account whether migrants’ lives are endangered, as well as the special needs of women and children. See Protocol against the Smuggling of Migrants by Land, Sea and Air, Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entered into force 28 January 2004), 2241 UNTS 480, art. 16.

Stateless Person

Article 1 of the UN Convention relating to the Status of Stateless Persons (Statelessness Convention) defines a stateless person as “a person who is not considered as a national by any State under the operation of its law.” The Statelessness Convention is the only international instrument that protects the treatment of stateless persons. See UN High Commissioner on Refugees, Handbook on Protection of Stateless Persons (2014), para. 3. States parties to the Statelessness Convention have the obligation to guarantee stateless persons certain rights, including but not limited to the right to non-discrimination (Article 3); the right to a personal status (Article 12); the right to identity papers (Article 27) and travel documents (Article 28); and the right to due process, particularly with respect to expulsion proceedings (Article 31). The UN Convention on the Reduction of Statelessness details how a State can confer “its nationality to a person born in its territory who would otherwise be stateless.” See Convention on the Reduction of Statelessness (adopted 30 August 1961, entered into force 13 December 1975), 989 UNTS 175, art. 1.

Trafficked Person

Article 3(a) of the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children defines trafficking in persons as:

The recruitment, transportation, transfer, harboring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation.

See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime (adopted 15 November 2000, entry into force 25 December 2003), 2237 UNTS 319, art. 3(a).

Exploitation is defined by the Protocol as including but not limited to the prostitution of others, forced labor, slavery or similar practices, or the removal of organs. See id. at art. 3. Trafficking in persons is a crime that can occur within the borders of a State or across borders, affecting migrants and internally displaced persons. See International Organization for Migration (IOM), Key Migration Terms.

States that have ratified the Protocol have obligations to provide assistance and protect victims of trafficking in persons. Under the Protocol, States must consider implementing measures to provide for medical and psychological assistance; employment, education, and training opportunities; housing; and counselling on legal rights. Additionally, States parties are obliged to endeavor to ensure trafficked victims’ physical safety and must ensure that victims have access to remedies to compensate them for their injuries. States must also protect the privacy and identity of the victim if appropriate. See Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, Supplementing the United Nations Convention against Transnational Organized Crime, art. 6.

WHAT RIGHTS DO MIGRANTS HAVE?

According to international human rights norms, which are based upon the inherent dignity of every person, migrants enjoy the fundamental rights afforded to all persons regardless of their legal status in a State. See Universal Declaration of Human Rights (adopted 10 December 1948), UNGA Res. 217 A(III) (UDHR), art. 1. See also Human Rights Committee, General Comment No. 15: The position of aliens under the Covenant, UN Doc. HRI/GEN/1/REV.9(VOL.I), 11 April 1986; Amnesty International, In Hostile Terrain: Human Rights Violations in Immigration Enforcement in the US Southwest (2012), 13. The Human Rights Committee has explicitly stated that, with the exception of Article 25 of the ICCPR, which pertains to political participation, all the rights guaranteed in the ICCPR apply to migrants. General Comment No. 15: The position of aliens under the Covenant, 11 April 1986. The rights discussed below apply to all migrants and do not comprise an exhaustive list.

Right to Life

All migrants have a right to life, and States have an obligation to ensure that no migrant is arbitrarily deprived of this right. See ICCPR, art. 6; ICRMW, art. 9. States should prosecute right to life violations, including extrajudicial killings that take place during a migrant’s journey from the country of origin to the country of destination and vice versa. See UN General Assembly, Resolution 23/20, Human rights of migrants, UN Doc. A/HRC/RES/23/20, 26 June 2013, para. 4(c).

States also have a duty to mitigate loss of life during land and sea border crossings. Id. at para. 4(d). Generally, under international human rights law and the international law of the sea, the State has a duty to protect and ensure the right to life of individuals at sea within the State’s territory or that a ship under the State’s jurisdiction comes across. The international law of the sea in particular has developed provisions concerning the rescue and protection of individuals, including migrants, lost at sea. For example, Article 98 of the UN Convention on the Law of the Sea (UNCLOS) places an obligation on shipmasters to assist any person found at sea who is in danger of being lost and rescue persons in distress if informed of their need for assistance, so long as such actions do not seriously endanger the ship, crew, or passengers. Article 98(2) of UNCLOS dictates that coastal States have a positive obligation to cooperate with neighboring States to promote effective search and rescue services. Additionally, Chapter 2.1.10 of the 1979 International Convention on Maritime Search and Rescue (SAR) notes that persons in distress at sea should be assisted regardless of their nationality, status, or the circumstances in which they are found. See International Commission of Jurists, Migration and International Human Rights Law: A Practitioner’s Guide (2014), 101.

Equality and Non-Discrimination

International human rights law guarantees freedom from discrimination in the enjoyment of human rights for all people, including migrants. For example, Article 2(2) of the International Covenant on Economic, Social and Cultural Rights states, “The States Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entry into force 3 January 1976), 993 UNTS 3, art. 2(2). See also ICCPR, art. 2(1).

When migrants belong to one of the groups protected by the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), the Convention on the Rights of the Child (CRC), or the International Convention on the Elimination of all Forms of Racial Discrimination (ICERD), the equality and non-discrimination provisions are also applicable to them. See Convention on the Elimination of all Forms of Discrimination Against Women (adopted 18 December 1979, entry into force 3 September 1981), 1249 UNTS 13, art. 1; Convention on the Rights of the Child (adopted 20 November 1989, entry into force 2 September 1990), 1577 UNTS 3, art. 2(1); International Convention on the Elimination of all Forms of Racial Discrimination (adopted 7 March 1966, entry into force 4 January 1969), 660 UNTS 195, art. 1(1); Committee on Elimination of Racial Discrimination (CERD), General Recommendation No. 30: Discrimination against non-citizens, UN Doc. CERD/C/64/Misc.11/rev.3, 19 August 2004.

Regional human rights instruments in the Inter-American, European, African and other regional human rights systems also guarantee the right to nondiscrimination. See American Convention on Human Rights “Pact of San José, Costa Rica” (adopted 22 November 1969, entered into force 18 July 1978), 1144 UNTS 123, OASTS No. 36, OEA/Ser.L.V/II.82 doc.6 rev.1 at 25, art. 1 (American Convention); African (Banjul) Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986), 21 ILM 58 (African Charter), art. 2; Arab Charter on Human Rights (adopted 22 May 2004, entered into force 15 March 2008), 12 Int’l Hum. Rts. Rep. 893 (2005) (ArCHR), art. 3; Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953), 213 UNTS 221 (European Convention on Human Rights, as amended) (ECHR), art. 14.

Additionally, a migrant’s right to nondiscrimination in the workplace is protected. See Vincent Chetail, Sources of International Migration Law, in Foundations of International Migration Law (Brian Opeskin et al., eds., 2012), 79. The ILO Declaration on Fundamental Principles and Rights at Work advocates for non-discrimination in the workplace in addition to other rights. Article 2 states:

All Members, even if they have not ratified the [ILO] Conventions in question, have an obligation arising from the very fact of membership in the Organization to respect, to promote and to realize, in good faith and in accordance with the Constitution, the principles concerning the fundamental rights which are the subject of those Conventions, namely: (a) freedom of association and the effective recognition of the right to collective bargaining; (b) the elimination of all forms of forced or compulsory labor; (c) the effective abolition of child labor; and (d) the elimination of discrimination in respect of employment and occupation.

The Inter-American Court of Human Rights held in its Advisory Opinion On the Juridical Conditions and Rights of Undocumented Migrants that the principle of equality and non-discrimination has reached the status of jus cogens or a peremptory norm of general international law. Therefore, all States are bound to these rules regardless of whether they have ratified specific international treaties. See I/A Court H.R., On the Juridical Conditions and Rights of Undocumented Migrants, Advisory Opinion OC-18/03, 17 September 2003, para. 173(4).

The Court emphasized:

A person who enters a State and assumes an employment relationship, acquires his labor human rights in the State of employment, irrespective of his migratory status, because respect and guarantee of the enjoyment and exercise of those rights must be made without any discrimination.

In this way, the migratory status of a person can never be a justification for depriving him of the enjoyment and exercise of his human rights, including those related to employment.

See id. at paras. 133-134.

Protection against Arbitrary Arrest and Detention

Individuals, including migrants, should not be subjected to arbitrary arrest or detention under international human rights law. See African Charter, art. 6; American Convention, art. 7; ArCHR, art 14; ECHR, art. 5; ICCPR, art. 9. Under Article 9 of the ICCPR, a State must not arbitrarily arrest and detain an individual, and the State must show that other less intrusive measures besides detention have been considered and found to be insufficient to prove detention is not arbitrary. The prolonged detention of a migrant is not justified simply by the need to wait for an entry permit or until the end of removal proceedings when reporting obligations or other requirements would be less intrusive measures to ensure that the migrant’s situation complies with domestic law. See Human Rights Committee, A v. Australia, Communication No. 560/1993, Views of 30 April 1997, para. 8.2.

The European Court of Human Rights (ECtHR) has held that holding a migrant for an unreasonably long period of time without informing him of the reason for detention violates the European Convention on Human Rights (ECHR). In Saadi v. the United Kingdom, Saadi fled Iraq and arrived in London where he claimed asylum and was granted “temporary admission.” However, immigration officials detained Saadi in January 2001 for 76 hours before Saadi’s representative was informed of the reasons why Saadi was being detained. The European Court of Human Rights found that the United Kingdom violated Article 5(2) (everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him) of the ECHR because Saadi was not promptly notified about why he was detained. The ECtHR noted that in order for States to comply with the European Convention detention must be carried out in good faith; it must be closely connected to the purpose of preventing unauthorized entry of the person to the country; the place and conditions of detention should be appropriate, bearing in mind that “the measure is applicable not to those who have committed criminal offences but to aliens who, often fearing for their lives, have fled from their own country.” See ECtHR, Saadi v. United Kingdom, [GC], no. 13229/03, ECHR 2008, Judgment of 29 January 2008, paras. 67-74.

Article 16(4) of the ICRMW specially protects migrant workers and their families from individual or collective arbitrary arrest or detention. The Committee on Migrant Workers notes that in order for arrest or detention to not be arbitrary, it must be “prescribed by law,” “pursue a legitimate aim under the ICRMW,” be “necessary in the specific circumstances,” and “proportionate to the legitimate aim.” See General Comment No. 2, 28 August 2013, para. 23. Additionally, the CMW stresses that the criminalization of irregular migration does not constitute a legitimate interest in regulating irregular migration. See id. at para. 24. Furthermore, the CMW emphasizes that lawful administrative detention may transform into an arbitrary detention if it exceeds the time period for which a State can properly justify the detention. See id. at para. 27.

Protection against Torture or Inhuman Treatment

The prohibition of torture is a jus cogens or peremptory norm of international law, which means that States have an obligation to enforce the prohibition of torture even if that State has not ratified a relevant treaty. Additionally, Article 2(2) of the Convention against Torture states that a State may never cite exceptional circumstances, including war or a public emergency, to justify torture. The ICCPR and regional human rights treaties also prohibit torture and cruel, inhuman, or degrading treatment. See ICCPR, art. 7; ECHR, art. 3; American Convention, art. 5(2); ArCHR, art. 8; African Charter, art. 5. Article 7 of the ICCPR extends the prohibition against torture or inhuman treatment to nonconsensual medical or scientific experimentation.

The ICRMW generally guarantees migrant workers the right to be free from torture and cruel, inhuman, or degrading treatment under Article 10 and specifically guarantees detained migrant workers the right to humane treatment during detention under Article 17(1). To guarantee the latter provision, States parties are obligated to ensure that they provide adequate conditions in accordance with international human rights standards, including by providing adequate food and drinking water; allowing communication with family and friends; providing access to qualified medical personnel; and protecting them from inhumane treatment, including sexual abuse. Additionally, accused migrants should not be placed together with convicted persons. See General Comment No. 2, 28 August 2013, paras. 36-48.

Non-Refoulement

Non-refoulement, a basic principle of refugee law, refers to the obligation of States not to refoule, or return, a refugee to “the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership in a particular social group or political opinion.” 1951 Convention relating to the Status of Refugees, art. 33(1). Non-refoulement is universally acknowledged as a human right. It is expressly stated in human rights treaties such as Article 3 of the Convention against Torture and Article 22(8) of the American Convention on Human Rights.

The right of non-refoulement is also applicable to individuals who do not have refugee status and may be interpreted more broadly than under the 1951 Convention relating to the Status of Refugees. Non-refoulement includes the obligation to not return a migrant to a State where he or she would face a real risk of persecution or other serious human rights violations, including torture and cruel, inhuman or degrading treatment or punishment; lack necessary medical treatment; or be threatened with the risk of onward refoulement. See CMW, General Comment No. 2, 28 August 2013, para. 50.

States’ obligations with respect to non-refoulement also apply extraterritorially whenever they operate and hold individuals abroad, including in the context of armed conflict or offshore detention or refugee processing facilities. Unlike under the 1951 Refugee Convention, which bases the principal of non-refoulement on the individual’s refugee status, non-refoulement in the context of the Convention against Torture applies regardless of refugee status. See Interim report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, UN Doc. A/70/303, 7 August 2015, para. 38.

Prohibition against Collective Expulsion 

The prohibition of collective expulsion of aliens is part of customary international law, and, therefore, every State, regardless of the international treaties it has ratified, is still bound by the obligation to uphold the prohibition. See Third report on the expulsion of aliens by Mr. Maurice Kamto, Special Rapporteur, UN Doc. A/CN.4/581, 19 April 2007, para. 115. Additionally, many of the major human rights instruments prohibit the collective expulsion of aliens. See Protocol 4 to the ECHR, art. 4; African Charter, art. 12(5); American Convention, art. 22(9); ArCHR, art. 26(2); ICRMW art. 22(1). Article 22(1) of the ICRMW also prohibits the collective expulsion of migrants and requires States to decide each migrant worker’s case individually.

While the ICCPR does not contain a provision that explicitly prohibits the collective expulsion of aliens, the Human Rights Committee has found that the prohibition can be read into the provisions of the ICCPR and found that collective expulsion may amount to a crime against humanity. The Human Rights Committee has found that Article 13, which regulates the procedural aspect of expulsion, prohibits collective or mass expulsions. See General Comment No. 15: The position of aliens under the Covenant, 11 April 1986, para. 10. The Committee noted further that the “deportation or forcible transfer of population without grounds permitted under international law [under the Rome Statute of the International Criminal Court], in the form of forced displacement by expulsion or other coercive means from the area in which the persons concerned are lawfully present, constitutes a crime against humanity.” See Human Rights Committee, General Comment No. 29: States of Emergency, UN Doc. CCPR/C/21/Rev.1/Add.11, 31 August 2001, para. 13(d). Moreover, the Committee declared that a State’s ability to derogate from Article 12, which guarantees freedom of movement, does not justify introducing collective expulsion measures. See id.

The prohibition on collective expulsion also pertains to migrants intercepted at sea. The Committee on Migrant Workers notes that this obligation pertains to all areas over which a State exercises effective control, possibly including vessels on the high seas. See General Comment No. 2, 28 August 2013, para. 51. The European Court on Human Rights has held that returning 24 individuals along with around 200 other individuals intercepted in international waters back to a country where they are at risk of torture or cruel, inhuman, or degrading treatment violated the prohibition of inhumane treatment under Article 3 of the ECHR. While the decision did not discuss the prohibition of collective expulsion explicitly, the ECtHR did state that States’ obligations under international human rights law applies to situations in which migrants were intercepted at sea. See ECtHR, Hirsi Jamaa and Others v. Italy [GC], no. 27765, ECHR 2012, Judgment of 23 February 2012, paras. 128-129.

Procedural Safeguards in Individual Expulsion Proceedings

As part of the duty to respect and ensure international human rights law, States have an obligation to provide adequate, appropriate, and effective remedies to victims of violations of international human rights law and international humanitarian law. See UN General Assembly, Resolution 60/147, Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, UN Doc. A/RES/60/147, 16 December 2005, arts. 2-3. The Human Rights Committee found that when it is possible for a substantive human right to be violated during an individual expulsion, extra procedures are necessary to guarantee the right to an effective remedy and a stricter form of strict scrutiny must be applied to the expulsion proceeding. See Human Rights Committee, Ahani v. Canada, Communication No. 1051/2002, Views of 15 June 2004, paras. 10.6-10.8.

Article 22 of the ICRMW dictates that States ensure that procedural safeguards are in place to protect migrants during individual expulsion proceedings. These safeguards include, but are not limited to, communicating the decision to expel to a migrant in language he or she understands; to provide the decision and reasoning in writing except if doing so would jeopardize national security; permitting a migrant to provide an explanation as to why he or she should not be expelled; and ensuring that the decision to expel is reviewed by a competent authority, during which time the individual may seek a stay of removal. Additionally, Article 22(6) of the ICRMW notes that States must permit an individual to settle claims for wages within a reasonable time before or after his or her departure. See also ILO Migrant Workers (Supplementary Provisions) Convention, 1975 (No. 143), art. 9(1).

Unlike the ICRMW, Article 1 of Protocol No. 7 to the ECHR only delineates procedural safeguards for regular migrants in expulsion proceedings. These protections include the opportunity to submit reasons against one’s expulsion, to have the case reviewed, and to have representation before a competent authority. However, a migrant may be expelled without the opportunity to exercise these rights if it is in the interest of public order or national security.

The African Commission on Human and Peoples’ Rights has held that a migrant has a right to have his cause heard before being expelled. Kenneth Good, an Australian national and former professor of political science at the University of Botswana, challenged his arbitrary termination of employment and expulsion from Botswana, following the publication of an article in which he criticized Botswana’s example of presidential succession. Thereafter, the president of Botswana exercised the powers vested in him by the Botswana Immigration Act and declared Good to be an “undesirable inhabitant” of, or visitor to, Botswana. Good was allowed only 56 hours to make arrangements for his departure from the country, was not told why he was being expelled, and was not given the opportunity to contest his deportation. The African Commission held that Botswana violated a number of Mr. Good’s rights, including Article 7, the right to have one’s cause heard. The right to have one’s cause heard includes: (a) the right to an appeal to competent authorities; b) the right to be presumed innocent until proven guilty by a competent court or tribunal; c) the right to defense, including the right to choose defense counsel; and d) the right to be tried within a reasonable time by an impartial court or tribunal. See ACommHPR, Good v. Republic of Botswana, Communication No. 313/05, 47th Ordinary Session, May 2010.

Family Rights

International human rights norms require States to consider migrants’ family life and their family members in decisions regarding their admission, detention, or expulsion. For example, the ICRMW obligates States parties to “pay attention to the problems that may be posed for members of his or her family, in particular for spouses and minor children” when a migrant worker is detained and to “take appropriate measures to ensure the protection of the unity of the families of migrant workers.” See ICRMW, arts. 17(6), 44. The Inter-American Commission on Human Rights has similarly concluded that States subject to its jurisdiction must take into account a migrant’s family ties, and the impact on his family members, in the host country in determining whether to deport him or her. See IACHR, Report No. 81.10, Case 12.562, Wayne Smith, Hugo Armendariz, et al. (United States), July 12, 2010.

Protection against Labor Exploitation

Migrants are protected against labor exploitation under ILO conventions, the ICRMW, and other major human rights treaties. Article 11 of the ICRMW explicitly prohibits forced labor, slavery, and servitude. Article 8 of the International Covenant on Civil and Political Rights states that no one shall be held in slavery or servitude. States have an obligation to take measures to prevent all forms of forced or compulsory labor by migrant workers, which includes eliminating the use of illegal confinement and withholding travel documents as a means to force migrants into compulsory labor. See ILO Forced Labour Convention (No. 29), art. 11; General Comment No. 2, 28 August 2013, para. 60.

The Committee on the Elimination of Racial Discrimination (CERD) noted that although States may enact laws requiring individuals to have a work permit, “all individuals are entitled to the enjoyment of labor and employment rights, including the freedom of assembly and association, once an employment relationship has been initiated until it is terminated.” See General Recommendation No. 30 on discrimination against non-citizens, 19 August 2004, para. 35. See also General Comment No. 2, 28 August 2013, para. 62;

With respect to migrant children, the Committee on the Rights of the Child (CRC) recommended that States develop labor and migration policies in accordance with the Convention on the Rights of the Child and ILO Conventions No. 138 concerning Minimum Age for Admission to Employment, No. 182 concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, and No. 189 concerning decent work for domestic workers. See CRC, Report of the 2012 Day of General Discussion on the Rights of All Children in the Context of International Migration, 28 September 2012, para. 90. Additionally, the Committee suggested that States implement monitoring systems concerning child rights violations in the workplace. See id.

Right to Social Security 

Article 27 of the ICRMW outlines the right to social security and notes that all migrant workers and their families, regardless of their status, have the right to receive the same treatment as nationals “insofar as they fulfill the requirements provided for by the applicable legislation of that State and the applicable bilateral and multilateral treaties.” If migrants are not eligible for a particular benefit, States have an obligation to determine whether it is possible to reimburse individuals who have made contributions with respect to that benefit. See ICRMW, art. 27. The Committee on Migrant Workers elaborated that if reimbursement is impossible, States should provide objective reasons for reaching its decision in each case. See General Comment No. 2, 28 August 2013, para. 69. However, a decision to not reimburse contributions should not discriminate solely on the basis of nationality or migration status. See id.

Other universal and regional human rights bodies have found that migrant workers have a right to social security. The Committee on Economic, Social and Cultural Rights (CESCR) stated that “where non-nationals, including migrant workers, have contributed to a social security scheme, they should be able to benefit from that contribution or retrieve their contributions if they leave the country.” See CESCR, General Comment No. 19 on the right to social security, UN Doc. E/C.12/GC/19, 4 February 2008, para. 36. The Inter-American Court on Human Rights reached a similar conclusion as the Committee on Economic, Social and Cultural Rights when it noted that a State will violate the human rights of a migrant worker, regardless of his or her migration status, “when it denies the right to a pension to a migrant worker who has made the necessary contributions and fulfilled all the conditions that were legally required of workers, or when a worker resorts to the corresponding judicial body to claim his rights and this body does not provide him with due judicial protection or guarantees.” On the Juridical Conditions and Rights of Undocumented Migrants. 17 September 2003. para. 154.

Right to Highest Attainable Standard of Physical and Mental Health

The ICRMW under Article 28 only requires States to provide migrant workers and their families with medical care that is urgently needed to save their lives on the same basis as nationals, but a State’s obligation to ensure the right to health is much broader under international human rights law. See General Comment No. 2, 28 August 2013, para. 72. Article 12 of the International Covenant on Economic, Social and Cultural Rights establishes the right to attain the highest standard of health for all persons, and the Committee on Economic, Social and Cultural Rights concluded, “persons, irrespective of their nationality, residency or immigration status, are entitled to [both] primary and emergency medical care.” See CESCR, General Comment No. 19 on the right to social security, UN Doc. E/C.12/GC/19, 4 February 2008, para. 37. Furthermore, the Committee on the Elimination of Racial Discrimination noted that States have an obligation to “ensure… the right of (undocumented) non-citizens to an adequate standard of physical and mental health by, inter alia, refraining from denying or limiting their access to preventive, curative and palliative health services.” See General Recommendation No. 30: Discrimination against non-citizens, 19 August 2004, prmbl. and para. 36.

According to the International Commission of Jurists, “when a healthcare system normally provides treatment beyond primary and emergency medical care, the exclusion of asylum-seekers, or documented or undocumented migrant workers and members of their families from the system would violate Article 12 [of the] ICESCR read together with Article 2, Article 5 [of the] ICERD, or (in cases involving children) Article 24 [of the] CRC.” See International Commission of Jurists, Migration and International Human Rights Law: A Practitioner’s Guide (2014), 249.

Migrant children have special protections regarding the right to health under international human rights law. The Committee on the Rights of the Child has stated that “when implementing the right to enjoy the highest attainable standard of health and facilities for the treatment of illness and rehabilitation of health under article 24 of the Convention, States are obligated to ensure that unaccompanied and separated children have the same access to health care as children who are . . . nationals.” See CRC, General Comment No. 6: Treatment of Unaccompanied and Separated Children Outside of Their Country of Origin, UN Doc. CRC/GC/2005/6, 1 September 2005, para. 46. The Executive Committee of UNHCR emphasized that refugee or asylum seeker children have a right to the highest attainable standard of health. See UNHCR, Conclusion No. 84 (XLVIII) on Refugee Children and Adolescent, UNHCR, 48th session, 1997, para. (a)(iii). Additionally, States have an obligation to provide “medical or other special care, including rehabilitation assistance, to assist the social reintegration of refugee children and adolescents, especially those that are unaccompanied or orphaned.” See id. at para. (b)(vi).

Right to Primary Education

States have an obligation to provide free and compulsory primary education at public institutions for all children. See Convention on the Rights of the Child, art. 28(1)(a); ICESCR, art. 13.2(a), 14; American Convention, art. 13.3(a); European Social Charter (revised) (adopted 3 May 1996, entry into force 1 July 1999), 2151 UNTS 277, art. 17. Article 30 of the ICRMW expands on this obligation, noting that States may not refuse or limit a child’s access to public pre-school educational institutions or schools based on a parent’s or child’s irregular situation.

According to the CMW, States have certain obligations to ensure the migration status of a child or a child’s parents does not prevent the child from receiving an education. See General Comment No. 2, 28 August 2013, paras. 75-77. To ensure this right, the CMW notes that States have an obligation to eliminate school fees and minimize the impact of costs for school materials and uniforms. Additionally, the CMW emphasizes that to ensure access to education, States should not require schools to share information about the migration status of a child or the child’s parents with immigration authorities or conduct immigration enforcement operations on or near school property. See id.

Freedom of Movement

Migrants have the right to freedom of movement within the territory of the State in which they are located, the right to leave a State, and the right to return home to their own State. See ICCPR, art. 12; ICRMW, art. 39; Convention on the Rights of the Child, art. 10(2); ICERD, art. 5; General Comment No. 15: The Position of Aliens Under the Covenant, 11 April 1986; Committee on the Elimination of Racial Discrimination, General Recommendation No. 22: Article 5 and refugees and displaced persons, UN Doc. A/54/18, 24 August 1996. This right does not guarantee the right of entry into any State. See General Comment No. 15: The Position of Aliens Under the Covenant, 11 April 1986, para. 5.

Restrictions to the right to leave a State or to freedom of movement in a State of residence must be provided by law and necessary to achieve a legitimate aim, and if a migrant wishes to return to her own State, another State cannot arbitrarily prevent her from doing so. See ICCPR, art. 12(3); General Comment No. 15: The Position of Aliens Under the Covenant, 11 April 1986, para. 8. While the guarantee against arbitrary removal from a State as provided for under Article 13 of the International Covenant on Civil and Political Rights does not protect undocumented migrants, if the status of a migrant is in dispute, the Human Rights Committee has stated that a State must still take the rights under Article 13 into account. See General Comment No. 15: The Position of Aliens Under the Covenant, 11 April 1986, para. 9.

Right to Enjoy Culture in Community with Others

Under Article 27 of the International Covenant on Civil and Political Rights, migrants who belong to an ethnic, religious, or linguistic minority group have the right to enjoy, practice, and use their culture, religion, and language together with other members of their community. See ICCPR, art. 27; Human Rights Committee, General Comment No. 23: Article 27 (Rights of Minorities), UN Doc. CCPR/C/21/Rev.1/Add.5, 8 April 1994, para. 5.1. The Human Rights Committee has stated that this right applies to all individuals within a territory, including those who do not have permanent residency status or are temporarily in the State. See General Comment No. 23: Article 27 (Rights of Minorities), 8 April 1994, para. 5.2. Furthermore, the determination that an ethnic, religious, or linguistic minority exists is not one that the State makes but depends on objective factors. See id. The State has a positive obligation to protect the right and the identity of the minority group through policy initiatives and to prevent the infringement of the right by third parties. See id. at para. 6.1-6.2.

Permissible Restrictions on Migrants’ Human Rights

While the core human rights standards apply equally to migrants and non-migrants, regardless of their legal status in a country, and prohibit discrimination on the basis of national origin, there are exceptions to these rules. See, e.g., General Comment No. 15: The Position of Aliens Under the Covenant, 11 April 1986; International Convention on the Elimination of All Forms of Racial Discrimination, arts. 1(2) and (3). International human rights law does allow States to treat citizens and non-citizens differently if the difference in treatment serves a legitimate State objective and is proportional to its achievement. See, e.g., Committee on Elimination of Racial Discrimination (CERD), General Recommendation No. 30: Discrimination against non-citizens, UN Doc. CERD/C/64/Misc.11/rev.3, 19 August 2004.

Specifically, States may reserve the right to vote and to be elected to political office to its citizens. For example, the Convention on the Rights of Migrant Workers and their Families only safeguards migrants’ right to participate in elections in their countries of origin. See ICRMW, art. 41. States may also restrict non-citizens’ ability to enter and remain in the country, subject to the procedural and substantive limitations described above, including the principle of non-refoulement.

In the realm of economic and social rights, States have been less willing to treat migrants and non-migrants equally, and some instruments – such as the European Social Charter – allow governments to grant certain public benefits to lawfully present migrants only. International law is less developed in this area.

SELECTED CASE LAW

  • In A. v. Australia, the Human Rights Committee found Australia had violated the right to liberty under Article 9 of the ICCPR by arbitrarily detaining the applicant, a migrant and Cambodian national who arrived to Australia by boat. He alleged that he was arbitrarily detained in Australia while his application for refugee status was pending. His detention was arbitrary, he argued, because there was no legitimate reason to detain him; at the time of filing his application, his detention had lasted for over three and a half years; and there was no available judicial review of his detention. The Human Rights Committee found that the State’s justifications for detention – that the applicant was a flight risk and had entered the country illegally – were insufficient to keep the applicant in detention for a total of four years in violation of the rights to liberty and security of Article 9(1) of the ICCPR. Additionally, the Committee found that the State’s restricted ability under recently passed legislation to review the lawfulness of detention of migrants was in violation of Article 9(4). See Human Rights Committee, A. v. Australia, Communication No. 560/1993, Views of 3 April 1997, UN Doc. CCPR/C/59/D/560/1993.
  • In Hirsi Jamaa and Others v. Italy, the European Court of Human Rights held that Article 3 of the European Convention on Human Rights, which prohibits torture and cruel, inhuman, or degrading treatment, places an obligation on State parties not to expel migrants to a country where the State party is aware that the migrants face risk of the treatment prohibited under Article 3. The 24 applicants, who are nationals of Somalia and Eritrea and were sent by Italian police to Libya, alleged that the Italian authorities returned them to a country where they were likely to face torture or cruel, inhuman, or degrading treatment within the country and likely to be repatriated back to their countries of origin where they would also likely face similar treatment. Because the Italian authorities knew the applicants were likely to be exposed to treatment as described under Article 3 both within Libya and in their home countries, which they were likely be sent back to once in Libya, the European Court held that Italy violated Article 3 of the Convention. See ECtHR, Hirsi Jamaa and Others v. Italy [GC], no. 2776/09, ECHR 2012, Judgment of 23 February 2012.
  • In Good v. Botswana, the African Commission on Human and Peoples’ Rights held that the inability to challenge an order of removal in the judicial system is a violation of the right to fair trial and right of non-nationals to be expelled according to the law. The complainant is a national of Australia who was working in Botswana when the President ordered him removed from the country after he wrote and published an article critical of the government. National legislation prohibited the domestic courts from hearing an appeal of an executive order of removal. The African Commission found violations of articles 7(1) and 12(4) of the African Charter on Human and Peoples’ Rights, which guarantees the right to have one’s cause heard by a competent tribunal and the right of non-nationals to only be expelled in accordance with the law. Furthermore, because the deportation orders, which were carried out the same day as the court’s ruling that it could not hear the complainant’s case, did not take into account the complainant’s family and the mutual support they derive from one another, the removal of the complainant violated his right to family life under Article 18. See ACommHPR, Good v. Botswana, Communication No. 313/05, 47th Ordinary Session, Judgment of 26 May 2010.
  • In Ramón Martinez Villareal (United States), the Inter-American Commission on Human Rights found that the United States violated the rights to due process and a fair trial under the American Declaration on the Rights and Duties of Man because the State failed to inform the applicant, who was convicted of a crime in the United States, of his right to consular relations. The Inter-American Commission referenced the obligations under Article 36 of the Vienna Convention on Consular Relations to inform the rights under the American Declaration. Article 36 of the Vienna Convention requires a State party to inform a non-national who has been arrested or detained that they have a right to communication with the consular office of their home State. A lack of communication with the consular office could result, the Commission noted, in due process violations due to factors including a lack of familiarity with the State’s judicial system or a language barriers. See IACHR, Merits Report No. 52/02, Case 11.753, Ramón Martinez Villareal (United States), 10 October 2002.

MONITORING & ENFORCEMENT

Within the universal system, States’ compliance with their obligations related to migrants’ rights may be monitored through the Universal Periodic Review, special procedures, and treaty bodies. Specifically, the Committee on Migrant Workers, the treaty body that monitors compliance with the ICRMW, reviews States parties’ reports on their implementation of the convention’s provisions and identifies areas for improvement in its concluding observations. The Committee on Migrant Workers also publishes general recommendations that interpret the convention’s protections.

When the individual complaint mechanism enters into force, the Committee on Migrant Workers will be able to consider individual communications alleging violations of the ICRMW by States parties who have made the necessary declaration under Article 77 of the Convention. In order for the individual complaint mechanism to enter into force, 10 States parties must make the necessary declaration under Article 77; as of November 2015, only El Salvador, Mexico, Turkey, and Uruguay have made such a declaration.

One of the United Nations Human Rights Council’s special procedures specifically monitors migrants’ human rights worldwide. In 1999, the United Nations Commission on Human Rights (predecessor to the UN Human Rights Council) established a Special Rapporteur on the human rights of migrants to promote the application of international standards on the rights of migrants and makes recommendations on ways to end violations against migrants.

Other UN human rights treaty bodies and special procedures may also monitor States’ progress in respecting and guaranteeing migrants’ rights to the extent that such issues fall within their mandates.

The Office of the United Nations High Commissioner for Refugees was established in 1950 and its mandate consists of protecting the rights of refugees, including asylum and resettlement.

The Global Forum on Migration and Development was established by UN Member States and held its first session in 2007. Its objectives include providing a platform to discuss best practices concerning migration and development; identifying institutional gaps at the national, regional and international levels; and forming partnerships between relevant stakeholders.

The International Labor Organization (ILO) has a supervisory system to ensure the compliance of Member States with the standards it develops. There is also a complaint procedure under which parties may file complaints against States for failure to comply with ratified ILO standards.

The regional human rights commissions and courts, including the European Court of Human Rights, the Inter-American Court of Human Rights, the Inter-American Commission of Human Rights, and the African Court on Human and Peoples’ Rights, evaluate individual complaints alleging violations of the regional human rights treaties, which include provisions protecting the rights of migrants. In addition, dedicated experts within the African and Inter-American human rights systems specifically monitor migrants’ human rights. The Inter-American Commission created a Rapporteurship on the Rights of Migrants in 1996, and the African Commission on Human and Peoples’ Rights created a Special Rapporteur on refugees, asylum seekers, migrants and internally displaced persons in 2004.

ADDITIONAL RESOURCES

Useful online sources on the rights of migrants include the following: