The International Covenant on Civil and Political Rights and United Kingdom Law

By David Harris; Sarah Joseph | Go to book overview

9
Immigration and Freedom of Movement

NUALA MOLE


INTRODUCTION: THE RIGHT TO FREEDOM OF MOVEMENT GENERALLY

Consideration of any country's compliance with international standards concerning freedom of movement should always begin by recalling that nowhere in international law is there to be found a general right to move freely across frontiers or for persons to enter or remain on the territory of a state of which they are not a national. A key attribute of sovereignty is, and always has been, the right to grant or refuse aliens access to one's territory.

The right to leave any country including one's own is, however, a general principle of international law, enforceable at least against the state one seeks to leave and now enshrined in Article 12 of the Covenant. But there has never been a general corresponding right to enter any other country.

In Britain the right to leave was protected in the original text of Magna Carta which safeguards the right of 'any person . . . to go out of our kingdom, and to return safely and securely by land or by water, saving his allegiance to us'. This right to free movement was originally restricted to free men and to the right to leave on condition that one subsequently returned. Emigration, in the sense of permanent departure to make one's home in another country, was for many more centuries prohibited.

In Schmidt v Home Secretary1 Widgery LJ stated:

When an alien approaching this country is refused leave to land, he has no right capable of being infringed in such a way as to enable him to come to this court for the purpose of assistance. . . . In such a situation the alien's desire to land can be rejected for good reason or bad, for sensible reason or fanciful or for no reason at all.

As a general principle states are free to admit only those aliens whom they choose, unless--and this is the important proviso-exclusion would result in a violation of some other aspect of their international obligations. But the rule remains that the right to exclude aliens must be respected, and international law in general, and the Covenant in particular, only depart from that rule where breaches of other fundamental rights would otherwise occur.

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1
[ 1969] 2 Ch. 149 at 172.

-297-

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