Exploring the legality of visa restrictions

In recent years, governments of so-called developed countries have increasingly restricted their visa policies as a diplomatic measure against developing nations. More often than not, such restrictions are imposed without legitimate justification, only as a means of expressing diplomatic disapproval, exerting pressure on other governments, or targeting individuals solely based on their nationality or race.

For instance, in 2025, the United States imposed additional travel restrictions on an array of countries on two separate occasions, saying it was due to "security threats." Similarly, since July-August 2024, India sharply reduced visa services for Bangladeshi citizens. Although staffing shortages was cited as the reason, critics alleged that the decision was politically motivated.

Admittedly, under international law, each country has the right to control who can enter its borders. Foreign nationals do not have an automatic right to visit another country. However, arbitrary policy decisions translating into visa or travel restrictions potentially also have human rights implications. National immigration laws often give officials wide discretion to refuse visas based on reasons such as "national interest" or "public safety," which are broad enough to be used to justify otherwise politically motivated policy decisions. For instance, in the United States, section 212(f) of the Immigration and Nationality Act of 1952 allows the executive branch to suspend entry of any aliens or any class of aliens whose presence would be "detrimental to the interests of the United States."

Courts, too, have historically been significantly deferential to executive determinations on immigration, recognising immigration control as a sovereign function. In the landmark case Chae Chan Ping v United States (1889), the US Supreme Court established the "plenary power" doctrine, affirming Congress's nearly absolute authority over immigration. More recently, in Department of Homeland Security v Regents of the University of California (2020), the Court ruled that immigration-related agency actions are usually subject to judicial review but emphasised strong deference to executive decisions on immigration policy.

Similarly, in Australia, the Migration Act 1958 gives the Minister for Immigration wide "public interest" discretion that cannot be challenged, as confirmed in recent High Court cases such as Davis v Minister for Immigration (2023).

In a similar vein, international tribunals, such as the European Court of Justice (ECJ), in Sahar Fahimian v Bundesrepublik Deutschland (2017), upheld a wide degree of discretion for states in immigration matters (para 42). However, it is important to note that the ECJ, while granting such wide discretion, also established that this discretion needs to be proportionate and be based upon "sufficient grounds" and a "sufficiently solid factual basis." Similarly, General Comment No. 15 (1986) by the UN Human Rights Committee, which interprets the International Covenant on Civil and Political Rights ('ICCPR'), states that an alien may enjoy the protection of the Covenant even in relation to entry or residence, for example, when considerations of non-discrimination, prohibition of inhuman treatment and respect for family life arise.

Importantly, in the case Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Qatar v United Arab Emirates) in 2018, International Court of Justice (ICJ), in its Order on Provisional Measures directed the UAE to allow Qatari nationals access to courts and family reunification, implicitly acknowledging the human rights impact of entry restrictions. However, the ICJ, in the preliminary objection stage of the case, declared that it did not have the jurisdiction to hear the case because the impugned actions by the UAE were based on nationality, and not "race, colour, descent, or national or ethnic origin", as required under Article 1(1) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD).

The findings of the ICJ apparently seem to be in contradiction with the jurisprudence of the Committee on the Elimination of Racial Discrimination (CERD Committee). This is because in General Recommendation XXX on Discrimination Against Non-Citizens, the CERD Committee mentions that if a state treats people differently just because of their nationality or immigration status, and if that treatment is not pursuant to legitimate aim and is disproportional to the achievement of such aim, then it counts as racial discrimination under the CERD.

However, the ICJ did deal with this apparent contradiction in the Qatar case. It found, "the Committee's aim was obviously to make clear that differential treatment on the basis of citizenship or immigration status is prohibited in so far as, "judged in light of the objectives and purpose of the Convention", the criteria used are a vehicle for disguised racial discrimination as defined in the CERD. The UAE, however, did not hide behind non-citizenship in order to racially discriminate (as defined in the CERD) against Qataris. The Recommendation has no bearing on the present case." Hence, the ICJ, here too, impliedly admitted that differential treatments based on citizenship or immigration status are prohibited if they are discriminatory or go against the objectives of the Convention.

 In light of the above, in my opinion, blanket visa restrictions may fall under the kind of discrimination that the CERD prohibits. However, challenging such practice (which violates the non-discrimination obligations under ICCPR and CERD) remains difficult in the current international legal framework, as the enforcement of such laws largely depends on the willingness of the states imposing such restrictions.

The writer is law student at the University of Dhaka and an official contributor for Law & Our Rights.