4.8.1 Freedom of movement [ICCPR art 12(1)] Condensed entry: Everyone lawfully within a territory of a State has the right to move freely within the territory of that state. ‘Everyone’ includes both nationals and non-nationals of a State. Foreigners must be lawfully in a country in order to enjoy freedom of movement. Different treatment of non-nationals and nationals must be justified. States are obliged to take action against discriminatory practices by private parties which violate freedom of movement. Any restrictions (such as dependency or reason requirements) on one’s right to movement must be provided by law and necessary to protect national security, public order, public health or morals or the rights and freedoms of others. Comprehensive entry: According to article 12(1) of the ICCPR : Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence. Freedom of movement is also provided for in other international and regional human rights instruments.[1] Freedom of movement addresses movement within acountry. The right applies to the whole territory including all parts of a federal state.[2] Everyone includes nationals and non-nationals of a state. The right is however guaranteed to those lawfully in the territory of the state concerned. Whether or not a foreigner is lawfully within the territory of a State is a matter governed by domestic law consistent with international law.[3]A foreigner who is in possession of a valid permit is lawfully within the territory of that state.[4] Refugees who have had their status determined have full freedom of movement, while the freedom of movement of asylum-seekers may be restricted if necessary.[5] In Celepli v Sweden the HRC held that a suspected terrorist was following an expulsion order only ‘lawfully in the territory of Sweden … under the restrictions placed upon him’.[6] Different treatment of non-nationals and nationals must be justified.[7] Restrictions on freedom of movement include any form of deprivation of liberty such as house arrest.[8] (See *arbitrary arrest and detention*).The ECtHR has held that if a person is allowed to leave his home for work, then house arrest does not constitute deprivation of liberty but a restriction on freedom of movement.[9] According to the HRC prohibition to leave a city constitutes restrictions on the freedom of movement and not deprivation of liberty.[10]Banishment to a particular part of a country interferes with the freedom of movement.[11] (See *choice of residence*). Preventing a person from traveling internally unless he or she has a permit interferes with his or her freedom of movement.[12] The ECtHR has held that security checks at airports do not in themselves constitute an infringement of the freedom of movement.[13] Any restrictions on freedom of movement must be provided bylaw and necessary to protect national security, public order, public health or morals or the rights and freedoms of others.[14] According to the HRC:[15] Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected. The principle of proportionality has to be respected not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law. States should ensure that any proceedings relating to the exercise or restriction of these rights are expeditious and that reasons for the application of restrictive measures are provided. Access to military zones may be restricted on national security grounds.[16] Freedom of movement may also be restricted in order to prevent crime. In Celepli v Sweden, the HRC has held that a requirement that a suspected terrorist must stay within his town of residence (a town of 10,000 residents), report to the police three times a week for nearly seven years was justifiable for the protection of national security and hence did not violate freedom of movement.[17] The ECtHR has held that in order for restrictions on freedom of movement as a crime prevention measure to be justifiable a real risk of an offence must be shown.[18] Article 12(1) of the ICCPR prohibits interference with the right to movement whether or not the interference emanated from a public or private individual or entity.[19] Thus the right of a woman to move freely may not be made subject, by law or practice, to the decision of another person, including a relative.[20] The HRC has expressed concern at a Yemeni law requiring a married woman to secure her husband's permission to leave the home.[21]
[1]CMW art 8; CERD art 5; CRC art 10; ACHR art 22; ECHR Protocol 4 art 2; ACHPR art 12. [2]HRC General Comment 27 para 5. See also Timishev v Russia application 55762/00 and 55974/00 (ECtHR 2005) para 44. [3]Celepli v Sweden communication 456/1991 (HRC 1994) para 9.2. [4]HRC General Comment 27 para 4. [5] Convention Relation to the Status of Refugees arts 26, 31(2). [6] Celepli v Sweden para. 9.2. [7]HRC General Comment 27 para 4. [8] Gorji-Dinka v Cameroon communication 1134/2002 (HRC 2005) para 5.5. [9]Trijonis v Lithuania application 2333/02 (ECtHR 2005 (admissibility)). [10]Celepli v Sweden. [11] Ngalula v Zaire communication 138/1983 (HRC 1986) para 10; Mpaka-Nsusu v Zaire communication 157/1983; Ackla v Togo communication 505/1992 (HRC 1996). [12]HRC General Comment 27 para 16. [13] Phull v France application 35753/03 (ECtHR 2005) (admissibility). [14]ICCPR art 12(3). [15] HRC General Comment 27 paras 14 & 15. [16] HRC General Comment 27 para 16. [17]Celepli v Sweden para 9.2. [18] Labita v Italy application 26772/95 (ECtHR 2000) para 196. [19]HRC General Comment 27 para 6. [20]HRC General Comment 27 para 6. [21] Report of the Human Rights Committee, UN GAOR, 57th Sess., Supp. No. 40, 73, UN Doc. A/57/40, (Vol. I) (2002).
Condensed entry:
Everyone lawfully within a territory of a State has the right to move freely within the territory of that state. ‘Everyone’ includes both nationals and non-nationals of a State. Foreigners must be lawfully in a country in order to enjoy freedom of movement. Different treatment of non-nationals and nationals must be justified. States are obliged to take action against discriminatory practices by private parties which violate freedom of movement.
Any restrictions (such as dependency or reason requirements) on one’s right to movement must be provided by law and necessary to protect national security, public order, public health or morals or the rights and freedoms of others.
Comprehensive entry:
According to article 12(1) of the ICCPR :
Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.
Freedom of movement is also provided for in other international and regional human rights instruments.[1] Freedom of movement addresses movement within a country. The right applies to the whole territory including all parts of a federal state.[2]
Everyone includes nationals and non-nationals of a state. The right is however guaranteed to those lawfully in the territory of the state concerned. Whether or not a foreigner is lawfully within the territory of a State is a matter governed by domestic law consistent with international law.[3]A foreigner who is in possession of a valid permit is lawfully within the territory of that state.[4] Refugees who have had their status determined have full freedom of movement, while the freedom of movement of asylum-seekers may be restricted if necessary.[5] In Celepli v Sweden the HRC held that a suspected terrorist was following an expulsion order only ‘lawfully in the territory of Sweden … under the restrictions placed upon him’.[6] Different treatment of non-nationals and nationals must be justified.[7]
Restrictions on freedom of movement include any form of deprivation of liberty such as house arrest.[8] (See *arbitrary arrest and detention*).The ECtHR has held that if a person is allowed to leave his home for work, then house arrest does not constitute deprivation of liberty but a restriction on freedom of movement.[9] According to the HRC prohibition to leave a city constitutes restrictions on the freedom of movement and not deprivation of liberty.[10] Banishment to a particular part of a country interferes with the freedom of movement.[11] (See *choice of residence*). Preventing a person from traveling internally unless he or she has a permit interferes with his or her freedom of movement.[12] The ECtHR has held that security checks at airports do not in themselves constitute an infringement of the freedom of movement.[13]
Any restrictions on freedom of movement must be provided by law and necessary to protect national security, public order, public health or morals or the rights and freedoms of others.[14] According to the HRC:[15]
Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.
The principle of proportionality has to be respected not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law. States should ensure that any proceedings relating to the exercise or restriction of these rights are expeditious and that reasons for the application of restrictive measures are provided.
Access to military zones may be restricted on national security grounds.[16] Freedom of movement may also be restricted in order to prevent crime. In Celepli v Sweden, the HRC has held that a requirement that a suspected terrorist must stay within his town of residence (a town of 10,000 residents), report to the police three times a week for nearly seven years was justifiable for the protection of national security and hence did not violate freedom of movement.[17] The ECtHR has held that in order for restrictions on freedom of movement as a crime prevention measure to be justifiable a real risk of an offence must be shown.[18]
Article 12(1) of the ICCPR prohibits interference with the right to movement whether or not the interference emanated from a public or private individual or entity.[19] Thus the right of a woman to move freely may not be made subject, by law or practice, to the decision of another person, including a relative.[20] The HRC has expressed concern at a Yemeni law requiring a married woman to secure her husband's permission to leave the home.[21]
[1]CMW art 8; CERD art 5; CRC art 10; ACHR art 22; ECHR Protocol 4 art 2; ACHPR art 12.
[2]HRC General Comment 27 para 5. See also Timishev v Russia application 55762/00 and 55974/00 (ECtHR 2005) para 44.
[3]Celepli v Sweden communication 456/1991 (HRC 1994) para 9.2.
[4]HRC General Comment 27 para 4.
[5] Convention Relation to the Status of Refugees arts 26, 31(2).
[6] Celepli v Sweden para. 9.2.
[7]HRC General Comment 27 para 4.
[8] Gorji-Dinka v Cameroon communication 1134/2002 (HRC 2005) para 5.5.
[9]Trijonis v Lithuania application 2333/02 (ECtHR 2005 (admissibility)).
[10]Celepli v Sweden.
[11] Ngalula v Zaire communication 138/1983 (HRC 1986) para 10; Mpaka-Nsusu v Zaire communication 157/1983; Ackla v Togo communication 505/1992 (HRC 1996).
[12]HRC General Comment 27 para 16.
[13] Phull v France application 35753/03 (ECtHR 2005) (admissibility).
[14]ICCPR art 12(3).
[15] HRC General Comment 27 paras 14 & 15.
[16] HRC General Comment 27 para 16.
[17]Celepli v Sweden para 9.2.
[18] Labita v Italy application 26772/95 (ECtHR 2000) para 196.
[19]HRC General Comment 27 para 6.
[20]HRC General Comment 27 para 6.
[21] Report of the Human Rights Committee, UN GAOR, 57th Sess., Supp. No. 40, 73, UN Doc. A/57/40, (Vol. I) (2002).