Revisiting and Further Exploring the Human Right to Leave

The right to freedom of movement has a distinct meaning under international law, understood as being formed of three complementary rights. These are (i) the right to leave any country, including one’s own, (ii) the right to return to one’s own country, and (iii) the right of everyone lawfully within the territory of a state to liberty of movement and the freedom to choose own residence. The combination does not amount to a general right to migrate across international borders, and freedom of movement is sometimes dismissed as not providing much freedom to move after all.

That said, there has in recent years been a renewed interest among legal scholars in the right to leave. This has mainly been in the context of departure prevention and how various measures aimed at containing migrants or would-be migrants in certain countries relate to their right to leave, right to seek asylum, and the prohibition of refoulement. Included in this category are insightful discussions by Stoyanova, Markard, Rodenhauser, and Moreno-Lax and Giuffré. More recently, McDonnell argued on this blog that “the right to leave remains underexplored” and that “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.”

I agree that the right to leave has been underexplored. States have in the past prevented their nationals from leaving and/or returning, or “punished” their dissident nationals abroad by denying them passports, and the rights to leave and return have been explored in such and various other connections. Now, these rights should arguably be revisited and further explored in other contexts, with current migration patterns and migration control policies and mechanisms in mind.

Forced return of migrants to transit countries

I have recently explored the right to freedom of movement in connection with forced return to transit countries in the European context. Central to my enquiry was the issue of whether migrants subject to enforced return procedures have a right to elect destination as an element of their right to leave the country deporting them. To be clear, “right to elect destination” is not intended to imply a right to enter any state of the person’s choice. What I mean is a right to choose the state of return among the options that may be legally available to the person.

In the European Union (EU) and Schengen areas, returns are governed by the so-called Return Directive. That directive gives states three destination options for enforced return: (i) country of origin, (ii) country of transit, or (iii) another country if the person consents to that destination. The directive does not require these options to be explored in a particular order and the agreement of the individual as to the country of enforced return is needed only where return is to “another country”. Meanwhile, accelerated return procedures provided under some readmission agreements (e.g., EU agreements with Turkey and Russia) incentivise quick returns back to transit countries without consideration of other options. Less formal agreements/arrangements negotiated with key transit countries (e.g., EU-Turkey deal) similarly open up for return directly back to those transit countries.

When the Human Rights Committee (HRC) interpreted the freedom of movement provision of the ICCPR in its General Comment No. 27 (1999), it stated in relation to the right to leave that

“the right of the individual to determine the State of destination is part of the legal guarantee. As the scope of [the right] is not restricted to persons lawfully within the territory of a State, an alien being legally expelled from the country is likewise entitled to elect the State of destination, subject to the agreement of that State.”

Based on this interpretation of the right to leave, migrants in an irregular situation being returned by force to transit countries also have a right to elect destination. The implications of this are twofold. Firstly, if election of destination is an inherent part of the human right to leave, then the chance to make such election (or waive that right) arguably needs to be built into return procedures to the extent it is not. Secondly, if election of destination is an inherent part of the human right to leave, then its denial will constitute an interference which needs to be justified in each case to be lawful (e.g., ICCPR Art. 12(3)). States often derogate from their freedom of movement obligations when under a state of emergency, but reservations are rare.

Human Rights Committee and European Court of Human Rights jurisprudence

The HRC’s general comments and decisions in individual cases (i.e., views) are not legally binding but constitute important soft law. The HRC has in the past found violation of the right to leave one’s own country in several cases involving instances of unjustified departure prevention. When it comes to leaving other countries, the violation decisions involve individuals legally residing in another country and unable to travel due to passport-related issues caused by their states of nationality (i.e., revocation of or refusal to issue/renew passports). In the so-called passport cases from the early 1980s, Uruguay argued in its defence that the authors could have still left the countries they were in and returned to Uruguay without valid Uruguayan passports but this did not stop the HRC from finding a violation of the right to leave.

The HRC’s general comments are normally firmly based on the committee’s past practice. I have, however, not encountered any HRC decisions involving a direct discussion on the right of an expelled alien (whether in the country lawfully or not) to elect destination. At the same time, the famous passport cases in particular are important for confirming that the right to leave another country entails more than not being denied departure, which speaks in support of a right to elect destination as an element of the right.

When it comes to the European Court of Human Rights (ECtHR), that court has over time developed an extensive jurisprudence on the right to leave. Those judgments routinely reiterate that the right guarantees to any person “a right to leave for such country of the person’s choice to which he may be admitted”. This is the case both in the many judgments involving leaving one’s own country (e.g., Battista v. Italy) and in the few rare judgments involving leaving a country other than one’s own (e.g., Baumann v. France). That said, the ECtHR acknowledges this choice element only in passing; I have not come across a judgment which contains a direct discussion on this. Moreover, unlike the HRC’s statement in General Comment No. 27, the ECtHR’s routine statement does not say anything specific about illegally staying persons being expelled.

In the absence of directly relevant case-law, it is not possible to say with certainty how the HRC and the ECtHR would rule in response to a concrete claim.

The way forward

There is room to argue that the right to elect destination is an inherent element of the right to leave in each and every case. Without this key element of choice, the right to leave would lose a lot of its meaning and content. And given the clear wording of both the ICCPR and the ECHR (i.e., everyone shall be free to leave any country), the availability of this component of the right should not be conditional on the legality of entry or stay, or on other migratory categories or statuses. In other words, it should be available also to those persons who are in the country illegally and are being removed. I have explained above the implications of this for forced return to transit countries. This is not to suggest that the individual’s relation to the state he/she is seeking to leave and his/her legal status there have no bearing. Such criteria, along with other relevant factors may come into play in the context of imposing and assessing restrictions on the right to leave in individual cases; after all, this is not an absolute right (e.g., ICCPR Art. 12(3)).

In my research, I have focused on forced return to transit countries in the European context but given the wide ratification of the ICCPR, this discussion is globally relevant. Moreover, the rights to leave and return are found with some variations in all the main international human rights instruments of regional application. These rights have developed remarkably differently under the ICCPR and the ECHR and there would therefore be great value in also looking into their development under other regional human rights regimes.

Finally, better understanding state practice in this area should be an important element of future enquiries into this topic. It is not uncommon for states to seek to send irregular arrivals back to where they arrived from (see, for example, the case of “the Czech girl”). State practice is of course an important element of treaty interpretation but notable in this connection is the position that subsequent practice which does not establish the position of all parties may be used only as a supplementary means of interpretation (see ILC Commentary pp. 20-21).

When I engage in this discussion on expelled aliens’ right to elect destination, I have in mind primarily those people who have a safe own country to which they can in principle go back but who instead find themselves in a transit country because it is more convenient for the deporting state to send them there. How all of this relates to the transfer of asylum seekers under the many different third country (i.e., transit or other connection) and fourth country transfer and processing schemes lately developed is another important question. And all of this brings me back to the relevance of revisiting and further exploring freedom of movement in different contexts.