To answer the question of the existence of the human right to migrate, the notion of migration and human right themselves must first be studied. Migration can be defined as a movement of persons from one country or locality to another one. Only international migrations, from one country to another one, with a border crossing will be studied in this essay. The second question to be answered is the definition of human rights, what is a human right ? According to the United Nations Office of the High Commissioner on Human Rights, 'Human rights are rights inherent to all human beings, whatever nationality, place of residence, sex, national or ethnic origin, color, religion, language, or any other status. We are all equally entitled to our human rights without discrimination.' These rights are all inter-related, inter-dependent and indivisible. This definition highlights the absolute nature of human rights which can not be limited but is both universal and inalienable. Is it possible to affirm that nowadays the movement of persons, the migration from one country to another one, can be classified as a human right?
[...] As a result of these texts, there is obviously a right to immigrate to the family of a person who works on the territory of another State. However, here again, the right is not absolute: on one hand, it is conditioned by the fact that the support of the right has a job. On the other hand, family members are often defined narrowly by states and only include the spouse and the children. For instance, homosexual couples can often not benefit from their right to family reunification. [...]
[...] Indeed, this text is also the basis of the right to family reunification for EU citizens. The definition of the family members under the Directive covers the spouse, the registered partner, the descendants under the age of 21 and the dependent direct relatives[26]. It must be specified that the members of family can be EU citizens but also third country nationals members of family, who must enjoy the same right as the EU citizen who lives in another Member State[27]. [...]
[...] Court of Justice 27 June 2006, C-540/03 (Parliament v. Council) S. Kneebone, The Refugee Convention 50 Years On: Globalisation and International Law, Ashgate E.Guild, The Europeanisation of Europe's Asylum Policy, International Journal of Refugee Law, doi: 10.1093 /ijrl/eel P. [...]
[...] This right of free movement as stated in the European Treaty is, in my opinion, close to a Human Right to migrate for several reasons. On one hand, it is attached to citizenship: the mere fact of being a European citizen enables people to move freely inside the EU. On the other hand, this right of free movement may be subject to legal remedies before the ECJ when a person considers that his right to free movement has been violated and is consequently efficiently protected. [...]
[...] Thus, the right to family reunification of third country nationals is limited under the Directive 2003/86/EC which level of protection has been rightly criticized compare to the one offered by the Article 8 of the ECHR. Asylum seekers do not enjoy absolute protection under European law. Indeed, the terms of the Qualification Directive are relatively close to those of the Geneva Convention and the same complaints can be directed to the protection offered. These remarks lead to the conclusion that there is no human right to migrate within European Community law. [...]
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