Protecting the right to leave in an era of externalised migration control

Thesis

This thesis explores the right to leave any country, including one’s own, in international law and its applicability to externalised migration control. Destination states and the European Union are employing a range of practices designed to prevent certain migrants leaving the state they are in and their irregular arrival, typically in cooperation with other states, private actors, and international organisations. Motivated by this phenomenon, this thesis focuses on the right to leave for migrants (including nationals seeking to leave their own state), which is fundamental on its own terms and in securing liberty and equality. It assesses the compatibility of key externalisation measures with the right and considers which actors bear responsibility for ensuing violations. Part I develops a general framework for determining whether restrictions conform with the right to leave, analysing the right’s scope and requirements and outlining corresponding obligations and duty-bearers. This shifts the focus onto challenging the traditional view that states have an almost unfettered right to exclude non-nationals, illustrating obligations to admit before demonstrating that the right to leave is exercisable irrespective of any right of entry. It then reveals the practical and legal necessity of the right for asylum seekers, appropriately formulated as a ‘right to leave to seek asylum’ and accompanied by several duties. Part II examines the law on jurisdiction and international responsibility. Applying the previous findings, Part III turns to externalisation, analysing the compatibility of visas, carrier sanctions, pushbacks, and pullbacks with the right to leave. It concludes that in most circumstances, such practices violate the right, with each actor responsible for their respective role. Overall, this thesis highlights the need for the primary contours of the right to be integrated into migration control policies and practices, compelling the dismantlement of many externalisation strategies and a re-imagining of the global (im)mobility infrastructure.

Authors: McDonnell, EV

• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: Externalised Migration Control; Right to Leave; Migration; Refugee Law; International Human Rights Law
• Subjects: Refugees; International law; Migration; Freedom of movement; International law and human rights