By Elspeth Guild, Queen Mary University of London
The right to leave any country including one’s own recognized under international and European human rights law is increasingly challenged by pullback practices as part of the fight against irregular migration and the externalisation of the EU migration policy. While the compatibility of such measures with the right to leave will be assessed during one workshop organised in the framework of the 2018 Odysseus Annual Conference, this background paper aims to give an overview of the main applicable international norms (1) and their interpretation by the UN Human Rights Committee (2) as well as the European Court of Human Rights (3).
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The main applicable international norms
Article 13(2) of the Universal Declaration of Human Rights 1948 contains the first post WWII expression of the right to leave a country. It states: “everyone has the right to leave any country, including his own, and to return to his country”. This call for a right to leave was transformed into a human rights obligation for states in the International Covenant on Civil and Political Rights 1966 (ICCPR). Article 12(2) states that “everyone shall be free to leave any country, including his own”. The right is not absolute in so far as Article 12(3) permits restrictions provided by law which are necessary to protect national security, public order, public health or morals or the rights and freedoms of others and are consistent with the other rights recognised in the Covenant. The ICCPR has been ratified by 169 states, and signed by another 6. Only 22 states have taken no action so far (most of these are small states, often islands. See http://indicators.ohchr.org/). In the European regional setting, Article 2(2) of the Protocol n°4 of the European Convention on Human Rights states that “everyone shall be free to leave any country, including his own”. Article 2(3) permits restrictions only where they are “in accordance with the law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others”. Of the 47 Member States of the Council of Europe only four have not ratified this Protocol (Greece, Switzerland, Turkey and the UK).
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The interpretation given by the UN Human Rights Committee
To clarify the interpretation given to the provision relating to the right to leave, the UN Human Rights Committee issued a General Comment on Article 12 ICCPR on 1 November 1999. The opening salvo of this General Comment is that “Liberty of movement is an indispensable condition for the free development of a person.” The Human Rights Committee determined that the right to leave a country may not be made dependent on any specific purpose or on the period of time the person chooses to stay outside the country. Travelling abroad as well as permanent departure are covered. The choice of where to go is that of the individual and the protection is not dependent on the person being lawfully present in the country from which he or she wishes to leave. According to the Committee, even an alien who is being expelled is entitled to choose his or her state of destination, subject to the agreement of that state. The right to leave also includes the right to a passport or other necessary travel documents which is normally a positive duty of the state of nationality. However, the Committee notes that state practices often adversely affect the right to leave. In order to assess the compatibility of such practices with the right enshrined in Article 12(2), the Committee called on all states parties to report on their legal and practical restrictions on the right to leave, including all information on measures that impose sanctions on international carriers which bring to their territory persons without required documents, where those measures affect the right to leave another country.
The Optional Protocol to the ICCPR provides for a dispute resolution mechanism for individuals who consider that their rights as set out in the ICCPR have been violated. Ratification of the Optional Protocol is not mandatory but 116 states parties to the ICCPR have ratified it, 3 have signed it but not yet ratified it and only 78 have taken no action (of which only two in the Council of Europe – Switzerland and the UK). The Human Rights Committee is the body competent to receive complaints from individuals regarding the protection of their human rights contained in the ICCPR. There is an obligation for individuals to exhaust domestic remedies before making a complaint to the Committee.
So far, there have been only four Communications from the Human Rights Committee regarding complaints of breaches of Article 12(2) ICCPR. The first against Libya involved a Libyan student resident in Morocco who applied to the Libyan Consulate in Morocco for a passport in order to travel to France to continue her studies. The Libyan authorities refused to issue the passport. As a result, she was unable to enrol in the University of Montpellier. The Committee found a violation of Article 12(2) as the student had been refused a passport without valid justification and subject to an unreasonable delay. She was also entitled to compensation. In the second case published on 31 August 2007, the claim was once again against Libya. The applicant was a Libyan national who had fled the country on account of his political beliefs for which he was persecuted there. He was granted asylum in Switzerland. His wife and children sought to join him there but were stopped at the Libyan-Tunisian border. Their passport was confiscated. The wife sought on numerous occasions to retrieve the passport unsuccessfully. Once again, the Committee found a violation of Article 12(2) and required the state to return the passport, so that the wife and children could join the applicant in Switzerland, and to pay compensation.
In the third case, Canada was the defendant state in a Communication published on 28 April 2009. The applicant claimed a breach of Article 12(2) because the Canadian authorities, following a refusal of his asylum application, refused to give him back his passport for the purpose of leaving the country. The Committee found this part of his claim inadmissible as he had failed to substantiate it in light of the state party’s explanation that his passport was seized pursuant to national law for the purpose of executing the applicant’s lawful removal. The final communication regarding Article 12(2) was published on 21 August 2009 and the defendant country was Uzbekistan. The applicant claimed that her father had been convicted illegally for crossing the Uzbek-Turkmen border for a business trip in circumstances which were not a threat to any of the interests protected by Article 12(3). The Committee found a violation of Article 12(2) making reference to General Comment 27 as “it is not sufficient that the restrictions (on leaving a country) serve the permissible purposes; they must also be necessary to protect them”. The state had provided no information about the necessity of the restriction on the applicant’s father’s travel, nor any justification of its proportionality.
From these communications of the Human Rights Committee, it is clear that the right to leave a country enshrined in Article 12(2) includes the right to leave a country of which one is not a citizen. It also requires states to provide travel documents even if that is for the purpose of family reunification with a refugee, national of that state, enjoying asylum elsewhere. States are entitled to hold the passport of someone who wants to leave the state where this is for the purpose of expulsion. The proportionality requirement which is referred to in the most recent communication probably also applies to this reason for preventing a person from leaving the state. It is likely that if the state does not pursue the expulsion of the person in an expeditious manner the time will come when the retention of the passport will no longer be consistent with Article 12(2). Finally, if states seek to prevent a person from leaving the country then, should they do so, the legality of any criminal prosecution of the individual for unlawfully leaving the state will be dependent on the consistency of the restriction with Articles 12(2) and (3). If the state cannot justify the restriction on leaving the country in accordance with Article 12(3), then the criminal prosecution will also be inconsistent with that provision. Furthermore, any restriction on leaving a country must be proportionate to a legitimate aim (as contained in Article 12(3)).
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The interpretation given by the European Court of Human Rights
The right to leave a country contained in Article 2(2) of the Protocol no. 4 to the European Convention on Human Rights has been the subject of substantial challenge before the European Court of Human Rights. Since 1994, the jurisdiction of this Court has been mandatory for the 47 Council of Europe states parties to the Convention. So far, 18 cases have considered, on the merits, the right to leave a country. The first case was determined in 2002 and the most recent in 2016. The top country for cases brought against it for a violation of Article 2 of the Protocol n°4 is Russia (six cases) with violations found in five of them. Next comes Bulgaria, with five cases, and violations found in respect of all of them. Romania has had two cases but no violation found. All other countries (Azerbaijan, Croatia, Italy, Hungary and Ukraine) had one violation found against them by the Court. The majority of the cases involve questions about, on the one hand, the legal basis for preventing a person from leaving the country on the basis of national law and, on the second hand, the justification of the measures. The most notorious judgment is that of Stamose v. Bulgaria of 2012 where the state authorities’ refusal to provide the applicant with a passport was at the request of a foreign government (the USA) from whence the person had been expelled. The Court found a violation of Article 2 Protocol 4 not least as the denial of passport facilities prevented the applicant from going anywhere, not just to the USA.
The European Court of Human Rights’ jurisprudence on Article 2 of Protocol n°4 is primarily in respect of former Soviet bloc countries where restrictions on travel were the norm before 1989. However, the former Soviet style legislation placing restrictions on travel outside the country have been mainly dismantled in the decades since the fall of the Berlin Wall. Yet, many of the cases which have come before the Court have been decided after 2012. Even bearing in mind the fairly long gestation of cases before the Court, this is a matter of concern.
The right to leave a country whether one’s own or any other country is a fundamental right both in international and European law. Careful examination of the circumstances of its breach and the search for remedies by individuals who claim their right has been violated should be a matter of concern especially nowadays when the fight against irregular migration prevents increasingly people to leave a country of transit or their own country.
