Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

54 | PRACTITIONERS GUIDE No. 6
the UN Human Rights Committee 57 and the European Court of Human
Rights 58 have found that legislation which limited the right of free access
to the destination country and immunity from deportation to the
wives of male citizens, and not the husbands of female citizens, violated
the prohibition of discrimination on grounds of sex (Articles 2 ICCPR
and 14 of the European Convention for the Protection of Human Rights
and Fundamental Freedoms (ECHR)), and the rights of the country’s
female citizens to family life (Articles 17 ICCPR and 8 ECHR) and to
the equal enjoyment of human rights (Article 3 ICCPR). It is also worth
noting the case of Hode and Abdi v. the United Kingdom, in which the
European Court of Human Rights ruled that laws differentiating between
refugees who had married before leaving their country of origin and
those who had married afterwards, for the purpose of family reunification,
constituted an unjustified discrimination and, therefore, violated
Article 14 ECHR in connection with Article 8 ECHR. The Court, in taking
this position, accepted that “in permitting refugees to be joined by preflight
spouses, the [State] was honouring its international obligations.
However, where a measure results in the different treatment of persons
in analogous positions, the fact that it fulfilled the State’s international
obligation will not in itself justify the difference in treatment.” 59
II. Categories and status of migrants
Notwithstanding the right of the State to control its borders, certain situations
or legal statuses confer rights to enter or remain on the territory.
Others, while not leading to a right to enter or remain, confer particular
rights or obligations of protection. This Section describes two types of status
which migrants may seek to establish in order to secure leave to enter
or remain: refugee status, and the status resulting from family reunification
with a migrant already present in the destination State. The procedural
rights connected with establishing these statuses and the substantive
rights conferred by their establishment are considered. In addition, this
Section addresses situations which are recognised as making migrants
particularly vulnerable—in particular, human trafficking and smuggling—
and therefore giving rise to some additional rights of protection of migrants.
1. Refugee status
The international right to seek asylum was first recognised in the Universal
Declaration of Human Rights which states in Article 14.1 that “everyone
has the right to seek and to enjoy in other countries asylum from perse-
57 Mauritian Women Case, CCPR, op. cit., fn. 55.
58 Abdulaziz, Cabales and Balkandali v. United Kingdom, ECtHR, op. cit., fn. 43.
59 Hode and Abdi v. the United Kingdom, ECtHR, Application No. 22341/09, Judgment of
6 November 2012, para. 55.