Realising the Right to Leave during Externalised Migration Control

States, predominantly those in the Global North, routinely engage in externalised migration control to obstruct and control the movement of asylum seekers and other migrants. Broadly speaking, externalised migration control involves the implementation of migration control practices and deterrence policies beyond a state’s territory or having extraterritorial effects.

Externalisation is often viewed and understood in the jurisprudence and literature as preventing migrants entering a state’s territory, violating obligations of non-refoulement and collective expulsion in international law. However, many externalisation practices utilised by destination states are also clearly directed at containing migrants in states of origin and transit, obstructing their right to leave the country they are in, including to seek asylum.

This post argues that the international right to leave any country is of great relevance to externalised migration control and taking steps towards its actual realisation is critical to protecting people on the move.

The Right to Leave

The right to leave is enshrined in almost all major universal and regional human right instruments, with Article 12(2) of the International Covenant on Civil and Political Rights for instance providing that ‘Everyone shall be free to leave any country, including his [her] own’. Restrictions are only permitted to the right which ‘are provided by law, are necessary to protect national security, public order (ordre public), public health or morals or the rights and freedoms of others, and are consistent with the other rights recognised in the present Covenant’ (Article 12(3)). The right to leave arguably also constitutes a norm of customary international law (see Chetail 2014).

Despite being of fundamental importance in protecting individual agency and the right of asylum seekers to flee to seek and secure international protection abroad, the right to leave remains underexplored and often overlooked. For instance, the Human Rights Committee has only issued one general comment on the right in 1999 in General Comment No 27and individual decisions on the right remain in the minority. Furthermore, little regard seems to be given by states or international organisations (IOs) to protecting the right to leave when devising and implementing externalisation strategies.

Obstructing the Right to Leave

Externalisation measures, such as visas, carrier sanctions imposed by states on airline and ferry operators for transporting undocumented or improperly documented passengers, and interception at sea and on land, all operate to interfere with the departure of (would-be) migrants and stall onward movement. Destination states and the EU also engage in more remote forms of externalisation, pressuring and enticing states of origin and transit to prevent migrants leaving their territories for the Global North. Through a ‘carrot and stick’ approach, partner states are given funding, training, equipment and technical support to enhance their border and exit controls, including through ‘pullbacks’, detention and criminalising irregular exit out of the country. This is in exchange for benefits such as development aid, trade concessions, access to labour markets and relaxed visa requirements for their citizens.

In Europe, EU Member States and agencies, including Frontex (the European Border and Coast Guard Agency), partner with states such as Libya, Morocco, Niger and Turkey to pullback migrants to their place of departure, in an effort to prevent them reaching the external border (see Pijnenburg 2018). Australia also engages in ‘incentivised policy transfer’ (Nethery & Gordyn 2014), providing substantial support to neighbouring states such as Indonesia, Sri Lanka and Vietnam to intercept and disrupt migrant vessels seeking to travel to Australia as well as funding IOM’s migration control activities in the region. Similarly, the US has long sought to prevent migrants reaching its borders by bolstering the migration control capacity of Mexico and Central American States, with the Biden administration reaching agreements with Mexico, Honduras and Guatemala for such ends earlier this year.

Alongside well-documented instances of violence and abuse during externalisation, forestalling the departure of migrants likely also violates their right to leave, including to seek asylum. As the Human Rights Committee in its General Comment No 27 highlights, to comply with the right to leave, everyone (which would include irregular migrants) must be protected from arbitrary, disproportionate and discriminatory interferences with their right to leave, with the right protecting the freedom to leave for any purpose and for the state of one’s choice.

Pulling back migrants at sea, for example, are a blanket and highly disproportionate measure interfering with departure. They cannot be classified as a genuine rescue within the meaning of the duty to rescue persons in distress at sea as enshrined in Article 98(1) UNCLOS, being inconsistent with several other human rights, notably the right to life, with migrants often ending up in unsafe conditions back on land. Similarly, carrier sanctions raise a number of legality, proportionality and consistency issues; denial of boarding by a carrier is highly discretionary, there is a risk of discriminatory profiling, and there may be no avenue to appeal the denial.  They are arguably also ineffective at meeting their aims of controlling irregular movement and combating human trafficking and smuggling. As Baird and Spijkerboer (2019) argue, ‘Carrier sanctions are an integral part of a system of migration control which results in migrants being unable to access the protection to which they are entitled under international law, and in migrants dying on their way to Europe, North America, Australia’. Carrier sanctions push migrants into more dangerous journeys, generating demand for people smugglers and increasing trafficking risks.

Realising the right to leave

There is a clear need for states, the EU, Frontex and IOM to recognise the importance of the right for people on the move and increase compliance with the right by integrating it into their migration and refugee policies and practices. This requires moving away from an overarching focus on externalisation and containment to developing human rights-oriented regimes. As the UNHCR recently emphasised, externalisation serves to ‘minimize or avoid responsibilities, obstructing rather than facilitating access to international protection’, being distinct from policies and practices seeking to share ‘international protection responsibilities in the spirit of international cooperation and solidarity’.

Rather than co-opting states of origin and transit to obstruct the departure of irregular migrants or engage in pushbacks themselves, to uphold the right, destination states and IOs should facilitate safe and legal mobility pathways for asylum seekers and other migrants on a much larger scale, introducing and expanding resettlement, humanitarian visas and corridors, access to study and work opportunities, and family reunification pathways. This would be far more effective and suitable in countering irregular migration, smuggling, and trafficking while saving lives. Nonetheless, individuals must always be able to flee to seek asylum, especially when facing imminent risk, as the crisis in Afghanistan reaffirms.

Going forward

To instigate such change, the focus of legal research and strategy needs to be not only on how externalisation may prevent entry but also on how it interferes with and violates the right to leave. This requires a shift in legal thinking and strategy by adjudicative bodies, litigants, scholars, partner states and international organisations.

When an externalisation practice or policy frustrates departure, litigants and advocates should plead the right to leave, as they would non-refoulement. Several complaints filed with the Human Rights Committee, which are yet to be considered, are particularly welcome in this regard. In one complaint against Italy, Malta and Libya, it has been argued that a pullback by the Libyan Coast Guard (LBCG) to Libya of migrant vessel in distress from the Maltese Search and Rescue zone with Italian and Maltese cooperation and inaction violated the complainants’ right to leave as well as other rights. In another complaint, it has been argued that Italy deprived the applicant of his right to leave any country, including Libya, in directing a merchant vessel to rescue a migrant boat on the high seas and liaise with the LBCG, leading to the migrants’ return to Libya (‘privatised pushbacks’). In contrast, in a case pending before the European Court of Human Rights concerning Italy’s responsibility for pullbacks by the LBCG, the claim did not rely on the right to leave, which represents a missed opportunity to argue that pullbacks violate the right.

Adjudicative bodies should develop and clarify the applicability of the right to leave to migration control activities as well as its requirements and scope. This includes domestic and regional bodies able to hear cases against departure and partner states in the Global South, for example the ECOWAS Court of Justice and African Court and Commission on Human and Peoples’ Rights, given the need to ensure all avenues for holding actors responsible are contemplated (see Tan & Gammeltoft-Hansen 2020). Successful cases would give partner states acting at the behest of destination states a strong ground to refuse to cooperate, not only for infringing the right to leave of migrants, but also for infringing regional free movement agreements (e.g. Protocol to the Treaty Establishing the African Economic Community Relating to the Free Movement of Persons, Right of Residence and Right of Establishment).

Going forward, the challenge will be for states and international organisations to fully appreciate the failures and harms of externalisation, making the necessary shift away from containment towards responsibility sharing. Alongside adjudicative bodies, we as lawyers and scholars have an important role to play in illustrating the incompatibility of externalisation with the right to leave, bringing us one step closer to realising the right to leave and freedom of movement more generally.