Exit Denied — How EU Externalisation Undermines the Right to Leave

By Dr Emilie McDonnell

University of Tasmania School of Law

Across the Middle East, North Africa, Southeast Asia and beyond, millions of people are being denied their right to leave and subjected to a discriminatory and exclusionary mobility regime.

Protecting the Right to Leave in an Era of Externalised Migration Control argues that the right to leave any country, including one’s own, in international law offers a neglected yet powerful lens through which to understand and challenge the global architecture of externalised migration control.

European Union (EU) policies and Member State practices – from visa policy and carrier sanctions to interceptions, cooperation agreements with States of origin and transit, and Frontex-supported operations – can obstruct departure and violate people’s fundamental right to leave, including that of refugees seeking asylum.

Reimagining EU migration policy, and the global (im)mobility regime more broadly, so that States and international organisations (IOs), including the EU, respect the right to leave would require radical reform. The book argues for a shift away from containment towards policies that uphold international law, promote genuine responsibility sharing and foster a far more liberal and equal global mobility regime.

The right to leave and externalisation

The right to leave any country, including one’s own, is widely recognised in international (see Article 12(2), International Covenant on Civil and Political Rights) and regional instruments (see Article 2(2) Protocol 4, European Convention on Human Rights), and as a norm of customary international law.

Externalisation encompasses a wide range of measures and policies designed to contain migrants in countries of origin and transit – including nationals seeking to leave their own country – in order to prevent them from reaching their intended destination. Rather than simply controlling entry (as is the usual focus), these measures restrict departure and movement from the very beginning and throughout the migration journey.

“Imagine a young Sudanese man desperate to escape the conflict and rampant abuses in Sudan. As a national of an unstable, refugee-producing country, he is unlikely to be granted a visa. Moreover, embassies are closed, he has no passport, and airlines will not board undocumented travellers. He plans to flee to Egypt, but the authorities have tightened their entry requirements. Denied safe and legal routes, he crosses into Chad and then endures a dangerous journey through the inhospitable desert into Libya, where he is met with violence, abuse and exploitation.

“With few alternatives, he boards an overcrowded, unseaworthy boat to cross the Mediterranean towards Italy. The boat may capsize or be pulled back by the Libyan Coast Guard, aided by Frontex, which shared the boat’s location with the Libyans. The man and others on board are taken to an EU-funded detention centre in Libya. Meanwhile, IOM is supporting Libyan border authorities to enhance their capacities.

“This example represents only a snapshot of the myriad possible restrictions on movement a migrant will encounter throughout their journey, imposed by State and non-state actors, from the point of departure and well before reaching their potential destination. The result is a global web of externalisation that has especially harmful effects in collectively containing migrants worldwide. Prima facie, externalisation measures may interfere with and violate the right to leave.”

Properly interpreted, the right to leave limits the migration controls that not only States of departure but also destination States and IOs (such as Frontex and the International Organisation for Migration (IOM) that design, fund or operationalise externalisation measures may lawfully impose.

Why this matters for EU policy

The EU and many Member States have institutionalised externalisation as a central element of their migration strategies and the external dimension of EU migration and asylum policy. This includes the EU’s common visa policy, interceptions at land and sea, Frontex’s expanding operational reach, safe country mechanisms, and the funding and training of third‑country authorities to stem irregular migration. The book examines these policies throughout, with dedicated discussion of the EU’s external migration agenda and its evolving externalisation practices.

The EU’s Pact on Migration and Asylum, adopted in 2024 and entering into force in June 2026, further entrenches “Fortress Europe” by restricting access to asylum, expanding detention at EU borders and increasing the risk of pushbacks. The new EU rules further shift responsibility onto third countries to prevent departures and open the door to offshore processing of asylum claims.

1. Visa regimes and carrier sanctions as exit‑blocking measures

Visa regimes and carrier sanctions function as pre-emptive migration control measures, preventing many prospective migrants, including people seeking asylum, from ever reaching the EU’s external borders. The EU’s so-called ‘blacklist’ of nationalities whose citizens require a visa includes almost every African country as well as most countries in the Middle East, Asia, the Caribbean and the Pacific. Rejection rates for Schengen visas are as high as 40-50 per cent for applicants from Ghana, Nigeria and Senegal. Without a visa or access to visa-free travel, people cannot lawfully reach their destination, enforced by airlines and transport operators who refuse embarkation to people without valid documentation and the deployment of immigration liaison officers to key countries of origin and transit.

Visa requirements and refusals and denials of embarkation should be assessed against the right to leave’s requirements of legality, proportionality and consistency with other rights. They may violate the right to leave where, for example, refusal processes involve poor or arbitrary decision-making, visas are practically unavailable or inaccessible to refugees and asylum seekers, racial discrimination or profiling occurs, or insufficient weight is given to the individual circumstances of applicants from blacklisted countries.

2. Pushbacks and pullbacks

Systematic and often violent pushbacks on land are well-documented along many of Europe’s land borders and at sea, including Greek pushbacks towards Turkey and, previously, Italian pushbacks to Libya (now replaced by refoulement by proxy).

States of origin and transit are increasingly enlisted by the EU and EU Member States to prevent irregular migration out of their territories, including through pullbacks (for example, by the Libyan Coast Guard with EU and Italian support, and Lebanon of Syrian refugees), the criminalisation of exit (for example, in Morocco, Niger and Tunisia) and immigration detention and deportation centres (such as in Turkey). In exchange, partner countries receive funding, equipment and technical support, together with incentives such as visa liberalisation, trade concessions and development aid, which are often made conditional on cooperation.

Migrants are often returned to the very places they sought to leave without individualised assessments. Pushbacks and pullbacks are highly disproportionate and indiscriminate measures, which often lead to other grave violations, including denial of the right to life, ill-treatment and refoulement. They not only destroy the essence of the right to leave but also obstruct access to asylum.

When the EU, Frontex or Member States design, fund, train or otherwise provide operational support for practices that result in pushbacks or pullbacks – for example, through Frontex aerial surveillance and information sharing with the Libyan Coast Guard and the Greek authorities – they should be understood to incur international responsibility for the resulting violations alongside the State carrying out the operation (cf. the European Court of Human Rights’ decision in S.S. and Others v Italy).

3. Offshoring and safe country mechanisms

The EU and its Member States have a growing interest in offshore asylum processing and outsourcing to non-EU states, including the externalisation of return. Under the EU’s proposed Return Regulation, Member States may deport people whose asylum claims have been rejected or have no legal right to stay in the EU to “return hubs” in non‑EU countries. The EU has also amended the “safe third country” concept in the new Asylum Procedures Directive to allow Member States to transfer asylum seekers to third countries with which the person has no connection to at all.

Previous offshore processing and safe country arrangements have raised serious legal and human rights concerns and, where implemented, have been associated with significant violations, including Australia’s offshore detention centres in Nauru and Papua New Guinea, the EU-Turkey deal, the United States-Guatemala Asylum Cooperative Agreement, and the UK-Rwanda Asylum Partnership.

Such arrangements seek to contain or detain people in third countries, prevent onward movement and deter future arrivals. As the book argues, it is highly doubtful that third States, including those designated as “safe third countries” may lawfully restrict departure to prevent irregular migration to Europe or obstruct the right to seek asylum.

Perhaps in the context of secondary refugee movements, the scope of the right to leave is exhausted when a person’s protection needs are fully met in the safe third country. However, it remains the case all migrants possess the right to leave for other purposes, including family reunification and tourism, subject only to justifiable restrictions.

Responsibility cannot be outsourced

Protecting the Right to Leave concludes that while destination countries and the EU often believe they can avoid responsibility through outsourcing to third States, this position is wholly untenable.

Destination States, States of origin and transit, as well as the EU (including Frontex) and other IOs (such as IOM), may all incur international responsibility, individually or jointly, for violations of the right to leave and related fundamental rights.

This responsibility may arise through direct conduct, for example, refusing a visa, denying embarkation, criminalising exit or carrying out pushbacks or pullbacks, or through a failure to fulfil positive obligations, such as failing to assist people in distress at sea. It may also arise through complicity or by directing another actor to commit a violation.

Capturing the involvement of multiple actors, as well as the asymmetrical power relations between them, is vital to establishing shared responsibility and remedying persistent accountability gaps arising from externalised migration control.

Making the right to leave meaningful

Protecting the Right to Leave argues that the right to leave is integral to taking the rights of people on the move seriously. It shifts attention away from entry alone to the harms of externalisation throughout the migrant journey and the legal obligations owed by destination, origin and transit States, and IOs.

The book develops a general framework for understanding the right to leave and proposes a series of recommendations to make this right meaningful and effective in practice, with the aim of improving the lives of migrants worldwide. Implementing these reforms would demonstrate that States, the EU and other actors are genuinely committed to addressing dangerous journeys, rather than shirking their responsibilities.

Reform ultimately depends on political will. However, progress can be achieved through incremental changes that better align migration policy with international legal obligations, such as expanding safe pathways and ending pushbacks and pullbacks.

As Guy Goodwin-Gill wrote in his foreword for the book: “States and international organisations can do better; they have the power to bring meaningful protection to those currently affected by restrictions on the right to leave, and they need to stop, listen and act.”

Making the right to leave meaningful requires sustained engagement from scholars, policymakers and practitioners. The proposals set out in this book aim to contribute to building a fairer, more equal and rights-respecting global mobility regime, one that recognises the dignity and human rights of people on the move and the responsibilities of those with the power to shape their journeys.