How Migration Policies Are Shaping the Enjoyment of Human Rights

By Kisuze Mahad Mugaya

1. Introduction

Migration, at its simplest, is the movement of people from one place to another, often involving a change in habitual residence across administrative or national borders (IOM, 2004). Migration may be internal i.e. within the boundaries of a state or external, involving movement between states. There are countless reasons as to why people move. Some move to seek opportunity, others seek safety and dignity, whereas for many, the movement is inspired by the search for survival. (Frouws et al 2021). The unifying factor for all these categories of people is the desire for a better life. For that reason, therefore, migration is not a deviation from human experience, rather it is part of the human shared story of change and adaptation.

© UNHCR/Roger Arnold

In their current state, domestic migration laws and policies reveal much about how states perceive mobility, belonging, and human worth. In recent times, the regulation of migration has become one of the most defining features of modern governance. The idea of who can move in and out of a country, who can stay, and under what conditions has been top of the political agendas of most countries and has been a deciding factor in major elections more so among the western states. Debates around the regulation on both ends of the sending and receiving states have been simplified to deeply emotional and identity-driven issue governed by rhetoric that politicians successfully leverage to mobilize their base and influence election outcomes instead of using reason and scientific evidence. For this reason, the subsequent implementation of these policies by governments have elements of exclusion, vulnerability, and political expediency. This undermines the enjoyment of human rights by migrants and their immediate relatives and the proclamation of their universality by international human rights law.

2. International law on Migration and Human Rights

The international legal framework for protecting migrants is clear. The 1951 Refugee Convention enshrines the principle of non-refoulement in Article 33(1) which prohibits states from returning refugees to territories where their life or freedom would be threatened. The non-refoulement obligation continues to apply under international human rights law, even for individuals who do not qualify for refugee status or fall under the Article 33(2) exceptions, particularly in cases involving torture or cruel and inhuman treatment. As a norm of customary international law, non-refoulement is binding on all states, regardless of whether they have signed the 1951 Convention or its 1967 Protocol. (Mahmoud, 2021) This is complemented  by the International Covenant on Civil and Political Rights (ICCPR) which provides for the right to life and freedom from torture and cruel, inhuman or degrading treatment under Articles 6 and 7 respectively. The prohibition of torture and cruel, inhuman or degrading treatment extends to all persons regardless of legal status and cannot be suspended even in emergencies. Similarly, Articles 2 and 13 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) guarantee non-discrimination and the right to education, reinforcing that human rights do not depend on nationality or documentation.

Within the African context, the 1969 OAU Convention Governing the Specific Aspects of Refugee Problems in Africa broadened the refugee definition to include persons fleeing external aggression or events seriously disturbing public order. This development acknowledged the continent’s post-colonial realities. The African Charter on Human and Peoples’ Rights, particularly Articles 4, 5 and 12, affirms the right to life, dignity, and freedom of movement.

The rights of migrants and refugees have also been the subject of many judicial decisions more so by regional human rights courts and commissions. In Union Interafricaine des Droits de l’Homme and Others v. Angola  (ACHPR 1997), the African Commission on Human and Peoples’ Rights held that Angola violated multiple provisions of the African Charter on Human and Peoples’ Rights when it rounded up and expelled large numbers of West African nationals between April and September 1996 without affording them any form of due process. The Commission found that the mass expulsions breached Articles 2, 7(1)(a), 12(4)–(5), 14, and 18 of the Charter, noting in particular that the affected individuals were never given an opportunity to challenge their deportation before competent national courts, thereby denying them the right to a fair hearing and equal protection of the law. While acknowledging that states retain the sovereign authority to deport undocumented migrants, the Commission emphasized that this power cannot be exercised arbitrarily or in a manner that strips individuals of the procedural guarantees required under the Charter. It therefore urged Angola and the complainants to derive legal consequences from the decision, including the appropriate remedies for the prejudice suffered. In Organisation Mondiale Contre la Torture (OMCT) v Zaire ,the commission held that arbitrary expulsions and mistreatment of foreign nationals violated the Charter’s guarantees of non-discrimination and humane treatment.  These decisions affirm that migration management cannot override basic human rights.

In Europe, the European Court of Human Rights (ECtHR) has consistently defended these principles. In Hirsi Jamaa and Others v Italy (Application no. 27765/09), the Court held that Italy was responsible for intercepting migrants at sea and returning them to Libya, finding a breach of Article 3 of the European Convention on Human Rights on the prohibition of torture and inhuman treatment and Article 4 of Protocol 4 that prohibits collective expulsion.  The Court emphasised that migration control does not exempt states from their human-rights obligations, even when operations occur beyond their borders. Similarly, in M.S.S. v Belgium and Greece (Application no. 30696/09) , the ECtHR found violations of Articles 3 and 13 after an asylum seeker was returned to Greece and subjected to degrading conditions, emphasizing that asylum procedures must protect, not punish, the vulnerable.

Photo by Corrie Boudreaux for Source NM

3. How Restrictive Migration Policies Limit Rights

Despite these legal pronouncements, the practical experiences of migrants across different regions reveal persistent violations linked to political narratives, social pressure, and deterrence-based migration strategies. In the United States, the Trump administration has had one of the largest anti -immigrant policies in recent times. This status quo, driven by political rhetoric, has directly shaped the treatment of migrants. Family separation, mass deportations and the criminalisation of irregular entry are implemented alongside public statements portraying migrants, particularly from Latin America, as criminals or security threats. The impact of these narratives is the normalisation of harsh enforcement actions which in turn violate human rights. Separating children from their parents undermines the right to family unity, which is closely tied to the right to dignity recognised across human rights instruments and jurisprudence. The use of expedited removals without meaningful access to legal representation or a fair hearing conflicts with due process guarantees in Article 14 of the ICCPR. More recently, social media statements by powerful individuals such as Elon Musk linking migrants to crime have contributed to a climate where restrictive policies seem justified, perpetuating discrimination contrary to obligations under Article 26 of the ICCPR. The end result is rhetoric that ignores empirical evidence around migration, driving policy in ways that marginalise migrants and undermine their rights.

In South Africa, the rise of Operation Dudula has led to widespread targeting of foreign nationals in townships and informal settlements. The organisation, turned political party, violently threatens and targets both documented and undocumented foreigners in South Africa. Migrants have been denied access to public health services, harassed in communities and forcibly removed from business areas by the operatives of this organisation. These actions are often justified in the name of nationalism, unemployment and crime prevention, yet they violate core human rights guarantees. Denying health care undermines dignity under Article 5 of the African Charter and the right to health under Article 12 of the ICESCR. Hostility and forced removals parallel the violations condemned in Union Interafricaine v Angola, where collective punishment and expulsions without due process were found discriminatory and arbitrary. Although the South African Constitution affirms the right to equality and non-discrimination, the gap between law and practice remains wide. These xenophobic attacks highlight the fragility of migrant protections when state institutions fail to counter harmful narratives.

In Europe, pushbacks along the Mediterranean and Balkan routes represent a serious human rights concern, involving the forceful and often violent expulsion of migrants, asylum seekers, and refugees without adequate safeguards. Documented by human rights organizations, these incidents frequently involve excessive force, ill-treatment, arbitrary detention, and the denial of access to asylum procedures. As a result of heightened border control measures, migrants face increasing risks of abuse and a lack of legal protection, illustrating how migration control can undermine fundamental rights. Reports consistently highlight interceptions and returns at sea and land borders, often carried out without identifying individuals or ensuring access to asylum. This situation is not so different from the human rights violations condemned in Hirsi Jamaa v Italy, where the European Court of Human Rights emphasized states’ obligations under Article 3 of the European Convention on Human Rights and the prohibition of collective expulsion under Protocol 4. Returning migrants to places where they face violence, detention or inhuman treatment is a breach of non-refoulement obligations under Article 33 of the Refugee Convention and customary international law. The end result of these deterrence-focused approaches by states is the reduction of individuals to mere security concerns rather than recognizing them as rights holders.

4. Conclusion

These examples demonstrate a clear pattern in the status quo. The politicisation of migration and its framing as a threat to national identity, economic stability or security, leads states to adopt policies that prioritise control rather than protection. Of course, often this is with little recourse to empirical evidence around migration and this results in practices that violate due process, dignity, equality, access to services and protection from harm. These practices conflict with the obligations that states voluntarily assume under international and regional human rights instruments. The principle of universality becomes strained when states differentiate between rights holders based on nationality or immigration status. Ultimately, migration continues to influence the enjoyment of human rights in very huge ways. When governed with fairness, mobility fosters opportunity, development and cultural exchange. When governed through exclusion and fear, it becomes a source of vulnerability and injustice. International human rights law through the legal instruments and cases discussed make it clear that migrants, regardless of status are entitled to protection and dignity. As Africa and the broader international community continue to grapple with migration governance, the real test is whether states choose policies that reflect legal obligations and human empathy.