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Is there “a right to leave one’s country?”

FCI has dedicated many articles to migration, but we have so far never addressed the question whether there is something as “a right to leave one’s country”. International law seems to be clear on this matter. The non-binding Universal Declaration of Human Rights 1948, other than guaranteeing the right to citizenship, also provides in Article 13(2) that “everyone has the right to leave any country, including his own, and to return to his country”. A stronger obligation of the same tenor was later laid down in Article 12(2) of the International Covenant on Civil and Political Rights 1966, and on the European level by Article 2(2) of the Protocol no. 4 of the European Convention on Human Rights.

Despite these international norms, there is an obvious tension between the right to leave any country and the restrictions that are imposed by states to regulate not only illegal but also legal migration. While the Trump administration imposed admissions restrictions on nationals of certain Muslim countries, for example, European countries have considered travel restriction for the Roma population. As the Council of Europe explains, once the Western Balkan states successfully obtained visa-free travel for their citizens to the EU, the rise in asylum applications from their nationals of Roma ethnicity increased, creating “friction and calls by some EU states for the withdrawal of visa-free travel for nationals of these countries”.

Other measures that restrict the right to leave one’s country relate to the externalisation of migration policies along the lines of the Australian model. The tension between the human rights orientation of the Council of Europe, on the one hand, and the responsibilities of states to maintain public support for their migration policies, will likely grow more visible over the coming years. Thus, the role of readmission agreements and the funding of detention centres on the territory of weaker parties is expected to become stronger, despite criticism from the Council of Europe that “the objective of such funding for detention centres is clearly to seek to avoid that persons expelled under the terms of a readmission agreement return to the EU state, by exercising their right to leave”. The same is true for the push-backs operations at sea or the denial of entry into European ports, which the Council of Europe also considers “a flagrant denial of the right to leave”.

Author: Dr. Olivier Vonk

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