Freedom of movement

From Wikipedia, the free encyclopedia

Title page of a European Union member state passport.

Freedom of movement, mobility rights or the right to travel is a human rights concept which is respected in the constitutions of numerous states. It asserts that a citizen of a state, in which that citizen is present, generally has the right to leave that state, travel wherever the citizen is welcome, and, with proper documentation, return to that state at any time; and also (of equal or greater importance) to travel to, reside in, and/or work in, any part of the state the citizen wishes without interference from the state. The concept is also used as the basis for enacting laws to prevent alternate use of streets, roads and right-of-ways from blocking or restricting freedom of movement such as block parties and playing basketball.

[edit] Common limitations

Freedom of movement is often more limited for minors, and penal law can modify this right as it applies to persons charged with or convicted of crimes (for instance, parole, probation, registration). In some countries, freedom of movement has historically been limited for women, and for members of disfavored racial and social groups. Circumstances, both legal and practical, may operate to limit this freedom. For example, a nation that is generally permissive with respect to travel may restrict that right during time of war. In some instances, the laws of a nation may assert a guarantee of this right, but lawless conditions may make unfettered movement impossible. In other instances, a nation whose written laws codify such rights may fail to actually provide them.

In Britain of late, it has been proposed that various official restrictions on the free movement and residence of persons within their own country be explicitly prohibited under a comprehensive new British Bill of Rights – including:

• the issuing of compulsory personal identity cards (internal passports, citizenship licenses) that must be produced on demand and/or in order for individuals to access public services and facilities;

• legal obligations on citizens to register changes of address or partner with the state authorities;

• protectionist political barriers to new housing/settlement in particular districts; and

• road toll barriers and other official curbs on freedom of motoring/travel.^[1]

[edit] Freedom of movement between private parties

Freedom of movement is not construed as a right to permit an individual to enter private property of another. Such an unauthorized entry constitutes a trespass, often punishable as a tort or a crime, for which the private landowner can summon public officials to remove a trespasser from the landowner's property. In some jurisdictions, questions have arisen as to the extent to which a private owner of land can exclude certain persons from land used for public purposes, such as a shopping mall or a park. There is also a rule of law that a landowner whose property is completely boxed in by that of other private landowners shall have the right to cross private land if that is necessary to reach a public thoroughfare.

There is a converse duty for a private person not to impede the free movement of another. Where a person prevents another from freely leaving an area, either by physically imprisoning them or by threats, that person may be subject to a lawsuit for false imprisonment, and to criminal charges for kidnapping.

[edit] Entrance restrictions in certain countries

Main article: Illegal immigration

[edit] Exit restrictions in certain countries

Main article: Illegal emigration

Some countries, such as the defunct Soviet Union, require that their citizens, and sometimes foreign travelers, obtain an exit visa in order to be allowed to leave the country. Currently, foreign students in Russia are issued only an entry visa on being accepted to University there, and must obtain an exit visa to return home. Citizens of the People's Republic of China that are residents of the mainland are required to apply for special permits in order to leave the mainland, including to enter the Special Administrative Regions of Hong Kong and Macau (and SAR residents require a Home Return Permit to visit the mainland). Saudi Arabia requires all resident foreigners, but not citizens, to obtain an exit visa before leaving the kingdom.

[edit] History

The recognition and protection of the freedom of movement was first recognized by Cyrus the Great, founder of the Achaemenid Persian Empire, in his charter of human rights documented in the Cyrus cylinder in 539 BCE.^[2]

When Augustus established the Roman Empire in 27 BCE, he assumed monarchical powers over the new Roman province of Egypt and was able to prohibit Senators from traveling there without his permission. However, Augustus would also allow more liberty to travel at times. During a famine in 6 CE, he attempted to relieve strain on the food supply by granting senators the liberty to leave Rome and to travel to wherever they wished.^[3]

In England in 1215, the right to travel was enshrined in Article 42 of the Magna Carta:

It shall be lawful to any person, for the future, to go out of our kingdom, and to return, safely and securely, by land or by water, saving his allegiance to us, unless it be in time of war, for some short space, for the common good of the kingdom: excepting prisoners and outlaws, according to the laws of the land, and of the people of the nation at war against us, and Merchants who shall be treated as it is said above.

After World War II, the United Nations was established. The new international organization recognized the importance of freedom of movement through documents such as the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (1966). Article 13 of the Universal Declaration of Human Rights reads,

Everyone has the right to freedom of movement and residence within the borders of each State.

Everyone has the right to leave any country, including his own, and to return to his country.

Article 12(2) of the International Covenant also defends this right.

[edit] Institutional laws by region

[edit] Africa

Freedom of movement laws and restrictions vary from country to country on the African continent, however several international agreements beyond those proscribed by the United Nations govern freedom of movement within the African continent. The African Charter on Human and People's Rights, Article 12, guarantees that every individual will have the right to freedom of movement within the borders of their own state so long as they abide by the states laws.^[4]The Charter also recognizes the right to leave and return to one's country at will, barring concerns of national security, public health, or a threat to the general population. The charter also prevents the mass expulsion of entire groups of people.^[5] However, these laws are not necessarily followed or enforced, as evidenced recently by the genocide and mass expulsion in Sudan. There have been attempts to have intellectuals recognized as having special freedom of movement rights, to protect their intellectual ideals as they cross national boundaries.^[6]

The Constitution of South Africa also contains express freedoms of movement, in section 21 of Chapter 2. Freedom of movement is guaranteed to "everyone" in regard to leaving the country but is limited to citizens when entering it or staying in it. Citizens also have a right to a passport.

[edit] Burma/Myanmar

The military regime in Burma has been criticized for allegations of restrictions to freedom of movement.^[7] These include restrictions on movement by political dissidents,^[8] women,^[9] and migrant workers.^[9] Burmese passports contain a microchip embedded in them which carries identifying information about the passport holder. UN special envoy Razali Ismail, part owner of Iris corporation which won the contract to install the new system, dismissed any security concerns, and said, "Must you think of things in such sinister terms? Anyway, it’s only for those people who want to travel outside. In most cases, those will be government people."^[10]

[edit] Canada

The Constitution of Canada contains mobility rights expressly in section 6 of the Canadian Charter of Rights and Freedoms. The rights specified include the right of citizens to leave and enter the country and the right of both citizens and permanent residents to move within its boundaries. However, the subsections protect poorer regions' affirmative action programs that favour residents who have lived in the region for longer. Section 6 mobility rights are among the select rights that cannot be limited by the Charter's notwithstanding clause.

Canada's Social Union Framework Agreement, an agreement between governments made in 1999, affirms that "All governments believe that the freedom of movement of Canadians to pursue opportunities anywhere in Canada is an essential element of Canadian citizenship." In the Agreement, it is pledged that "Governments will ensure that no new barriers to mobility are created in new social policy initiatives."^[11]

[edit] European Union

Main article: Four Freedoms (European Union)

Within the European Union, residents are guaranteed the right to freely move within the EU's internal borders by the EC Treaty and the European Parliament and Council Directive 2004/38/EC of 29 April 2004.^[12] Union residents are given the right to enter any member state for up to three months with a valid passport or identity card. If the citizen does not have a travel document, the member state must afford them every facility in obtaining the documents. Under no circumstances can an entry or exit visa be required. There are some security limitations^[13] and public policy restrictions on extended stays by EU residents. For instance, a member state may require that persons register their presence in the country "within a reasonable and non-discriminatory period of time". In general, however, the burden of notification and justification lies with the state. EU citizens also earn a right to permanent residence in member states they have maintained an uninterrupted five year period of legal residence. This residency cannot be subject to any conditions, and is lost only by two successive years absence from the host nation. Family members of EU residents, in general, also acquire the same freedom of travel rights as the resident they accompany, though they may be subject to a short-stay visa requirement.^[12] Furthermore, no EU citizen may be declared permanently persona non grata within the European Union, or permanently excluded from entry by any member state.

[edit] Hong Kong

Under Basic Law of Hong Kong article 31, "Hong Kong residents shall have freedom of movement within the Hong Kong Special Administrative Region and freedom of emigration to other countries and regions. They shall have freedom to travel and to enter or leave the Region. Unless restrained by law, holders of valid travel documents shall be free to leave the Region without special authorization."

[edit] Ireland

In Ireland, the Thirteenth Amendment of the Constitution of Ireland was adopted in November of 1992 by a plebiscite of the Irish people in order to ensure the freedom of movement in the specific circumstance of a women traveling abroad to receive an abortion - a practice that is banned in Ireland itself.

[edit] Republic of Poland

The freedom of movement in Republic of Poland of Polish nationals holding dual citizenship is or might be unlawfully restricted by Polish government. US Department of State is warning Polish nationals holding dual citizenship, that Polish government despite that Poland joined the Schengen System are obliged to use Polish travel documents (a Polish passport or, as an alternative within the Schengen zone, a Polish National ID card (Dowód Osobisty), or they will NOT be allowed to leave Poland. The latest such incident is recorded as of January 15, 2008. Poland requires Polish citizens (including American citizens who are or can be claimed as Polish citizens), or those who can be suspected to be Polish citizens, to enter and depart Poland using a Polish passport.
Poland does not recognize (although it does not prohibit) dual nationality.
A person holding Polish and U.S. citizenship is deemed by Poland to be a Polish citizen and subject to Polish law. The US Embassy in Poland will not be in a position assist Polish citizens in case of not being allowed to leave Poland.

• Poland - US Department of State: Country Specific Information.
• Dual Citizenship

[edit] Syria

The Syrian Constitution states "Every citizen has the right to liberty of movement within the territory of the State unless prohibited therefrom under the terms of a court order or public health and safety regulations.".^[14] The United Nations has reported that "in Syria, no laws or measures restrict the liberty of movement or choice of residence of citizens.".^[15] Legislative Decree No. 29 of 1970 regulates the right of foreigners to enter, reside in and leave the territory of Syria, and is the controlling document regarding the issuance of passports, visas, and diplomatic travel status. The document specifically states "The latter provision is intended merely to ensure that our country is not the final destination of stateless persons."^[16]

However, Syria has been criticized by groups, including Amnesty International for restrictions to freedom of movement. In August 2005, Amnesty International released an "appeal case", citing several freedom of movement restrictions including exit restriction without explanation, refusal to issue passports to political dissidents, detention, restriction from entering certain structures, denial of travel documents, and denial of nationality.^[17] The United Nations Human Rights Committee issues regular reports on human rights in Syria, including freedom of movement.^[18]

[edit] Tibet

Article 5 of the International Convention on the Elimination of all forms of Racial Discrimination explicitly guarantees "...the right to freedom of movement and residence within the border of the State".^[19] Under the Chinese household registration citizen, Tibetan residents must receive permission to change their household between a rural and urban area. Tibetans are also forced to agree to Chinese communist party ideals in order to receive a permit to exit the country.^[20] It has been reported that Chinese residents in Tibet are not subject to these restrictions, especially if they have access to a Chinese household permit.^[21]

[edit] United States

The Privileges and Immunities Clause of the United States Constitution states, "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." As far back as the circuit court ruling in Corfield v. Coryell, 6 Fed. Cas. 546 (1823), the Supreme Court recognized freedom of movement as a fundamental Constitutional right. In Paul v. Virginia, 75 U.S. 168 (1869), the Court defined freedom of movement as "right of free ingress into other States, and egress from them."75 U.S. 168 (1868) However, the Supreme Court did not invest the federal government with the authority to protect freedom of movement. Under the "privileges and immunities" clause, this authority was given to the states, a position the Court held consistently through the years in cases such as Ward v. Maryland, 79 U.S. 418 (1871), the Slaughter-House Cases, 83 U.S. 36 (1873) and United States v. Harris, 106 U.S. 629 (1883).^[22][23]

In United States v. Wheeler, 254 U.S. 281 (1920), the Supreme Court reiterated its position that the Constitution did not grant the federal government the power to protect freedom of movement. However, Wheeler had a significant impact in other ways. For many years, the roots of the Constitution's "privileges and immunities" clause had only vaguely been determined.^[24] In 1823, the circuit court in Corfield had provided a list of the rights (some fundamental, some not) which the clause could cover.^[25][26] The Wheeler court dramatically changed this. It was the first to locate the right to travel in the privileges and immunities clause, providing the right with a specific guarantee of constitutional protection.^[27] By reasoning that the clause derived from Article IV of the Articles of Confederation, the decision suggested a narrower set of rights than those enumerated in Corfield, but also more clearly defined those rights as absolutely fundamental.^[28]

But the Supreme Court began rejecting Wheeler's reasoning within a few short years. Finally, in United States v. Guest, 383 U.S. 745 (1966), the Supreme Court overruled Chief Justice White's conclusion that the federal government could protect the right to travel only against state infringement.^[29][22][23]

In Kent v. Dulles, 357 U.S. 116 (1958) (overruled by Regan v. Wald, 468 U.S. 222, reh'g denied, 469 U.S. 912 (1984)),[2] the United States Secretary of State had refused to issue a passport to an American citizen based on the suspicion that the plaintiff was going abroad to promote communism. Although the Court did not reach the question of constitutionality in this case, Justice William O. Douglas held that the federal government may not restrict the right to travel without due process:

The right to travel is a part of the 'liberty' of which the citizen cannot be deprived without due process of law under the Fifth Amendment. If that "liberty" is to be regulated, it must be pursuant to the law-making functions of the Congress. . . . . Freedom of movement across frontiers in either direction, and inside frontiers as well, was a part of our heritage. Travel abroad, like travel within the country, . . . may be as close to the heart of the individual as the choice of what he eats, or wears, or reads. Freedom of movement is basic in our scheme of values.

Six years later, the Court struck down a federal ban restricting travel by communists (Aptheker v. Secretary of State, 378 U.S. 500 (1964)). But the court struggled to find a way to protect legitimate government interests (such as national security) in light of these decisions. Just a year after Aptheker, the Supreme Court fashioned the rational relationship test for constitutionality in Zemel v. Rusk, 381 U.S. 1 (1965), as a way of reconciling the rights of the individual with the interests of the state.^[30]

The U.S. Supreme Court also dealt with the right to travel in the case of Saenz v. Roe, 526 U.S. 489 (1999). In that case, Justice John Paul Stevens, writing for the majority, held that the United States Constitution protected three separate aspects of the right to travel among the states: the right to enter one state and leave another, the right to be treated as a welcome visitor rather than a hostile stranger (protected by the "privileges and immunities" clause in Article IV, § 2), and (for those who become permanent residents of a state) the right to be treated equally to native born citizens (this is protected by the 14th Amendment's Citizenship Clause).

The Court's establishment of a strong constitutional right to freedom of movement has also had far-reaching and unintended effects. For example, the Supreme Court overturned state prohibitions on welfare payments to individuals who had not resided within the jurisdiction for at least one year as an impermissible burden on the right to travel (Shapiro v. Thompson, 394 U.S. 618 (1969)). The Court has also struck down one-year residency requirements for voting in state elections (Dunn v. Blumstein, 405 U.S. 330 (1972)), one-year waiting periods before receiving state-provided medical care (Memorial Hospital v. Maricopa County, 415 U.S. 250 (1974)), civil service preferences for state veterans (Attorney Gen. of New York v. Soto-Lopez, 476 U.S. 898 (1986)), and higher fishing and hunting license fees for out-of-state residents (Baldwin v. Fish & Game Comm'n of Montana, 436 U.S. 371 (1978)).^[30][31][32]

A strong right to freedom of movement may yet have even farther-reaching implications. The Supreme Court has acknowledged that freedom of movement is closely related to freedom of association and to freedom of expression. Strong constitutional protection for the right to travel may have significant implications for state attempts to limit abortion rights, ban or refuse to recognize same-sex marriage, and enact anti-crime or consumer protection laws. It may even undermine current Court-fashioned concepts of federalism.^{[33][34][35][36][37]}

The issue of freedom of movement has received new attention in the United States as of 2004, particularly concerning the methods and practices of the Transportation Security Administration.^{[citation needed]}

Another issue of contention deals with freedom of movement across U.S. national borders. The United States has long been lax in permitting persons to cross from Canada into the United States.^{[citation needed]} Concerns about drug trafficking and illegal immigrants seeking employment have led to much stricter controls on those crossing the border from Mexico.^{[citation needed]}

[edit] References

[edit] External links

• Freedom of Movement and limitations thereof in Cuba
• Freedom of Travel policy within the European Union
• UN, Universal Declaration of Human Rights