December 02 2023

The right to leave a country

The right to leave a country

Refugee boy

The Syrian crisis is not only the world’s biggest humanitarian crisis at present, but also Europe’s biggest refugee crisis in 20 years. By the end of 2013, 2.3 million registered refugees, 52% of whom were children, had fled the country. Painting from Flickr, under Creative Comms licence from the Smithsonian American Art Museum (americanartmuseum)

More generally, irregular migrants, including asylum seekers coming to the EU, often face extreme difficulties in leaving a country, including their own. This is seen in the ‘push-back’ practices in the Mediterranean (the consequences of which were seen when 12 Moroccan migrants died trying to enter Spain last week), ‘Dublin returns’ – which set out the circumstances in which an asylum-seeker may be returned from one EU country to another – to places whose asylum systems are dysfunctional, and the criminalisation of migration.

These problems are compounded by a rising wave of extremism, beginning to make serious inroads into the political life of several European countries, and affecting migrants from a number of European countries, particularly the Western Balkans and new EU member states. In the UK this ‘discourse’ has most recently been evidenced in the context of Roma migration.

The right to leave a country, including one’s own
The right to leave is inscribed in most major human rights instruments, notably Article 2 of Protocol No. 4 to the European Convention on Human Rights (the Convention) and Article 13.2 of the Universal Declaration of Human Rights. It is intended to ensure that people can move freely, including out of the country they are in, without unjustified obstacles.

The right to leave a country (as the case of Nada demonstrated) also constitutes a central element in the exercise of other human rights which states have undertaken to respect – such as Convention rights under article 8 and article 13 (the right to an effective remedy) – and more fundamentally the international protection from torture, and inhuman or degrading treatment, given that regimes which practice persecution and torture are notorious for impeding and preventing their victims from leaving the state.

However, currently in Europe, the most invidious reason for restrictions on departure are states seeking to implement immigration and border control policies on their neighbours – something which sees states seeking to control both the entry to their country, as well as imposing controls on their own citizens travelling.

Internal restrictions and travel bans
The most obvious method of preventing a citizen from exercising their right to leave, is by depriving them of travel documents, such as a passport.

Article 12.2 of the International Covenant on Civil and Political Rights includes a positive duty on states – to issue travel documents in order to make effective the right to leave one’s country, as well as a passive one – not to place obstacle in the way on an individual seeking to leave.

States can place restrictions on the right to leave, but these restrictions must be necessary, in accordance with the law, and subject to a proportionality test.

A number of travel ban cases have been considered by the European Court of Human Rights, most recently in Stamose v Bulgaria. In looking at Article 2 Protocol 4, the courts have said that even where the law may have been designed to discourage and prevent breaches of another state’s immigration laws, that in addition to considering whether the aim of any travel ban was legitimate (because of public order or prevention of crime concerns for instance), states also have to consider whether a ban is necessary. This requires an assessment of the proportionality of the restriction or for the state to provide sufficient and persuasive justification for it.

The right to seek and enjoy asylum
The right to seek and enjoy asylum is found in Article 14.1 of the Universal Declaration of Human Rights, the 1951 UN Convention on Refugees, Article 18 of the EU Charter on Fundamental Rights, as well as the 1984 UN Convention against Torture. However it has not become a justiciable human right, and there is gap between the individual seeking to flee persecution or torture and the duty of states who are party to the Refugee Convention for instance, not to send them back.

Also importantly, in terms of international protection, refugee recognition and protection is possible only once asylum seekers have left their country of origin and crossed an international border. Therefore if measures are imposed which prevent a person from leaving their state of origin or arriving at a destination to seek asylum, then refugees do not ‘exist’ in terms of that states responsibility towards them.

The UN recognizes the right of every state to control its borders, but has made clear (from the Greek/Turkish border disputes through to Syria) that any border control mechanisms established must be sensitive to the needs of people seeking protection.

Obligatory visa requirements and blockades are one example of where a state introduces measures and mechanisms to prevent people from entering their territory. In 2012 Italy was found to have breached article 3 of the Convention after practicing a form of interdiction, which involved intercepting and collecting groups of Libyans, fleeing to Italy as asylum seekers, on the high seas and returning them by Italian military ships back to Tripoli (Hirsi Jamaa and others v Italy) .

Another (and less transparent) example was the infamous agreement in 2001 between the UK and the Czech Republic (prior to their accession to the EU), where British immigration officers were posted to Prague airport to advise airlines about who and who should not be allowed entry to the UK. The objective was to reduce the number of Czech nationals arriving in the UK and claiming asylum. However the basis of the immigration official’s decision making was eventually found to be ethnicity – specifically whether they looked Roma – a practice found to be ‘inherently and systematically discriminatory’ in 2004 by the House of Lords in R v Immigration Officer at Prague Airport ex parte Roma Rights Centre and others.

Non-nationals right to leave a country
The right to leave a state belongs not only to its citizens but also to foreigners, irregular or otherwise (Article 13.2 of the UN Declaration of Human Rights and Article 2 of Protocol 4 of the Convention).

States are not entitled to place obstacles in the way of foreigners leaving their countries irrespective of where the foreigners seek to go – although certain conditions or limitations can be placed on that right in order to protect national security, public order, health or morals and the rights and freedoms of others. To be permissible the restrictions must be provided by law, necessary in a democratic society (Miazdzyk v Poland) and be consistent with other rights recognized in the Convention. States risk breaching the Convention where they therefore put migrants in administrative detention with the objective of preventing them leaving the country altogether.

The right to leave and prohibited discrimination
There has been a 20 year recognition by the Council of Europe of the right to free movement of persons. However where there have been incidences of the violation of this right, and the right to leave, it has often involved action taken against specific ethnic groups, in particular the Roma.

Discrimination on any ground, national or social origin, birth or ‘other status’ which includes nationality or ethnicity, actual or imputed (Timishev v Russia) is prohibited by Article 14 of the Convention.

The situation in Western Balkans
Visa liberalization towards Western Balkan states has been accompanied by a corresponding concern among a number of EU member states around the nationals of those states ‘abusing’ the system, entering and ‘overstaying’, and/or for activities or reasons not foreseen or intended.

In 2011 some EU countries, who had registered a significant increase in asylum applications, intensified their calls on Western Balkan governments to properly manage their migration outflows. This led in 2013 to the European Parliament adopting a visa waiver suspension mechanism to allow the EU to re-impose visa requirements in emergencies.

In turn Western Balkan governments have responded to the pressure by some EU countries and imposed legal and other measures to stem migration flows, including those seeking asylum in Western Europe. However many of these are incompatible with human rights standards, the principle of non-discrimination (as the Roma social group often being their primary target), and the right to seek and enjoy asylum.

The impact of the EU externalization of border control policies is increasingly coming into conflict with the right to leave a country. It has seen EU member states (perversely often the states who were the strongest supporters of human rights and fundamental freedoms before 1989 and the end of the Cold War) creating a panoply of measures designed to prevent people from leaving the country in which they are in, on the grounds that if allowed to leave then they might entering irregularly into the EU. These measures range from mandatory visa requirements, which only prevent some people from leaving (often on the basis of ethnic profiling), sanctions and penalties on travel carriers, to readmission agreements which have the effect of enabling EU member states to send back anyone, citizen or foreigner, who is found to have irregularly entered their territory.

Finally there are the ‘push back’ measures’, where increasingly (and with deadly consequences) some EU states prevent people from leaving their state by pushing them back, usually on the high seas, to their state of departure. Such practices are clearly inconsistent with Article 2 of Protocol No.4 to the Convention.

The objective of these states is to seek to ensure that unwanted potential migrants do not arrive at the borders of their territories. The victim (unintended or otherwise) however, is the human right to leave a country, including one’s own.