Summary by Eric Glavin
General Rights of Migrants
“Non-refoulement” is a basic principle of refugee law, which obligates States not to return a refugee to the territory of a country where their life or freedom would be threatened on the basis of “race, religion, nationality, membership in a particular social group or political opinion”. (1951 Convention relating to the Status of Refugees, Article 33).
Migrants, just like all other persons, have the right to not be subject to torture or inhuman treatment. The prohibition of torture is a jus cogens, or a pre-emptory norm of international law, which all states are bound to follow regardless of whether or not they have signed treaties agreeing to do so. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW), at Article 17, specifically guarantees the rights of migrants to humane treatment during detention. State authorities are obligated to provide migrants in detention with adequate food and drinking water, access to medical treatment, the opportunity to communicate with family and friends, as well as protecting them from all manner of inhumane treatment, including sexual abuse.
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.” (ICRMW, Articles 17 and 44.)
Migrants have the right to non-discrimination in the workplace. The International Labour Organization’s Declaration on Fundamental Principles and Rights at Work, 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 labour; (c) the effective abolition of child labour; and (d) the elimination of discrimination in respect of employment and occupation.” Furthermore, 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 labour and employment rights, including the freedom of assembly and association, once an employment relationship has been initiated until it is terminated.” (General Recommendation No. 30 on discrimination against non-citizens, 19 August 2004, para. 35.)
Universal Declaration on Human Rights
The Universal Declaration on Human Rights (passed by the United Nations General Assembly in 1948), Articles 1 and 2, states that every human has the same and equal rights, regardless of race, sex, language, religion, political opinions, national origin, or any other differentiating factor. These rights apply to all humans, regardless of the country or jurisdiction they find themselves in. Article 3 of the Declaration states that everyone has the right to “life, liberty, and security of the person”, while Article 5 states that “no one shall be subject to torture, or to cruel, inhuman, or degrading treatment or punishment”. Articles 9 and 10 of the Declaration state that no one shall be subject to arbitrary arrest or detention, and that all persons have the right to a free and fair trial if detained.
Importantly, Article 14 of the Declaration states that all persons have the right to seek asylum in other countries, if they are victims of persecution in their home country.
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights (ICCPR) is a multilateral treaty adopted by the United Nations General Assembly (UNGA) in 1966. The covenant commits its parties to respect the civil and political rights of individuals, including the right to life, freedom of speech, freedom of assembly, and rights to due process and a fair trial. Article 7 of the Covenant states that no person shall be subject to cruel, inhumane, or degrading punishment or treatment. Article 9(1) of the Covenant states that everyone has the right to liberty and security of the person. This is elaborated on further in Subsections 2 – 4 of Article 9, which state that any person who is arrested must be informed of the reasons thereof, that anyone in detention is entitled to a trial or release within a reasonable time. If, at trial, the person’s detention is deemed to be unlawful, the person must be released immediately. Regarding detention conditions, Article 10 of the Covenant states that persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
Charter of Fundamental Rights of the European Union
The Charter of Fundamental Rights of the European Union (The Charter) enshrines certain political, social, and economic rights for all people residing within the European Union. It applies both to institutions of the EU, and to the governments of EU Member States. The Charter contains many provisions that protect the rights of migrants and asylum seekers within its borders. Article 6 of The Charter states that “everyone has the right to liberty and security of person”. The contents of these rights are repeated and elaborated upon in Article 5 of the European Convention on Human Rights (ECHR, see section below).
In addition, Article 18 of the Charter guarantees the right of third country nationals to claim asylum in an EU Member State. Article 19(1) prohibits the collective expulsion of groups of people, and Article 19(2) states that “ No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.”
European Convention on Human Rights (ECHR)
The European Convention on Human Rights (ECHR) is designed to protect the human rights of all peoples residing within a state which has signed the Convention. It was created by the Council of Europe, an international organization whose aim is to uphold human rights, democracy and the rule of law in Europe. The Council of Europe is distinct from the European Union, counting many nations among its membership that are not in the EU, like Ukraine, Serbia, and Turkey.
As stated above, Article 5 of the ECHR enshrines the right to liberty and security of the person. This means that states who are members of the Convention cannot lawfully deny an individual of their freedom (by imprisoning them, or holding them in detention), except under the following circumstances, defined in Article 5, Subsection 1:
- a) the lawful detention of a person after conviction by a competent court;
- b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
- c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
- d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
- e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
- f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
In addition, Article 5(2) of the ECHR goes on to state that any person who is arrested must be informed promptly of the reason for his or her arrest and any charges against them, in a language that they understand. Article 5(3) states that a person arrested in accordance with Article 5(1) must be granted a trial within a reasonable time, and may be released from detention following a guarantee to appear for trial at a later date. Article 5(4) states that everyone who is deprived of his liberty by arrest or detention shall be entitled to a judicial hearing to determine whether their detention was lawful. If the judicial proceedings decide that the detention was unlawful, the person must be released immediately. Article 5(5) states that everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
Protocol 4, Article 4 of the Convention prohibits the collective expulsion of “aliens”, meaning third country nationals. According to Protocol 7, Article 1 of the Convention, an alien lawfully resident in the territory of a State shall not be expelled therefrom unless a court has declared that he or she must, with that decision reached in accordance with law. Before expulsion, the person must be given the chance to (a) submit reasons against his expulsion, (b) to have his case reviewed, and (c) to have legal representation in support of his case.