THE RIGHT TO LEAVE AND AUSTRALIA’S ASYLUM SEEKER POLICIES

Emilie McDonnell

Currently, around 1,300 refugees and asylum seekers are trapped in limbo on Nauru and Manus Island. This situation is the direct result of Australia’s inhumane and illegal offshore detention regime that has seen 3,127 refugees and asylum seekers imprisoned on Nauru and Manus.

Just across the archipelago in Indonesia, around 14,000 asylum seekers reside without access to basic services, unable to work, and with little to no prospect of being resettled in Australia or anywhere else. Since 2000, the Australian government has worked closely with Indonesia and the International Organisation for Migration (IOM), providing significant funding for immigration detention and other migration control operations to prevent individuals leaving Indonesia by boat to seek asylum in Australia. Australia also cooperates with a number of other states in the region to disrupt people smuggling and prevent irregular migration.

Externalisation and the Right to Leave

Australia is clearly pursuing a strategy of containment, designed to prevent asylum seekers leaving the state they are in and their ‘irregular’ arrival at Australian shores. The implementation of migration control practices and deterrence policies offshore can be broadly understood as externalisation. Destination states around the world are engaging in externalisation, enlisting states of origin and transit to prevent irregular migration on their behalf (see eg the EU-Turkey deal and Libyan pullbacks supported by Italy and the EU) as well as outsourcing to private actors and international organisations, like IOM.

Practices designed to prevent irregular migration may interfere with and violate the right to leave, as well as the right to seek asylum. However, save several notable exceptions, little attention has been paid to the applicability of the right to leave to externalisation. Legal challenges before national and international bodies and scholarship in this context often focus predominantly on other rights and obligations, such as the prohibitions on refoulement and collective expulsion.

The right to leave any country is enshrined in most major human rights instruments, including the Universal Declaration of Human Rights (Article 13(2)) (UDHR) and the International Convention on Civil and Political Rights (Article 12(2)) (ICCPR), as well as in regional human rights instruments, such as the European Convention on Human Rights (Article 2(2) of Protocol 4). Article 12(2) of ICCPR, binding on Australia as a State Party, provides that:

Everyone shall be free to leave any country, including his own.

The right is available to everyone, both lawfully and unlawfully present in any country, meaning that refugees, asylum seekers, internally displaced persons, and ‘irregular’ migrants have the right to leave. While the right to leave can be restricted, this can only be done if necessary to protect national security, public order, public health or morals or the rights and freedoms of others, and if provided by law and consistent with other rights in the ICCPR.

Australia’s Restrictions on the Right to Leave

Several of Australia’s asylum policies and practices appear to interfere with the right to leave. First, Australia, like many states, has in place mandatory visa regimes for nationals of refugee-producing states. The right to leave is often made dependent on having permission to enter another state, through visa requirements enforced by carrier sanctions, which penalise airline and transport operators for transporting undocumented migrants.

Visa regimes are open to the charges of lacking transparency and foreseeability, with people unable to anticipate when they will be granted or denied a visa, and being discriminatory on racial, religious or class-based grounds. However, establishing a violation in this context may prove problematic given it is generally accepted that states have the right to control the entry of non-nationals onto their territory, as well as the widespread use of visas. Nonetheless, according to the Human Rights Committee, there is a clear violation of the right to leave if restrictions are discriminatory. Visa regimes and carrier sanctions represent the key structural conditions which force asylum seekers to leave irregularly and undertake dangerous journeys with the help of smugglers, being unable to resort to safe, legal pathways to seek protection, such as by boarding a plane.

Second, funding detention and other measures in the region to prevent people leaving for Australia by boat may be a violation of the right to leave by partner states and Australia. Such measures also undermine the right to seek asylum in Article 14(1) UDHR, given the ability to leave often operates as a precondition for seeking protection. Here, we are faced with two complex issues. Firstly, whether Australia exercises a sufficient level of power and control over the individuals or situation when supporting partner states so as to trigger its human rights obligations. Secondly, whether human rights bodies could hold Australia responsible for aiding and assisting states in the region commit a violation of the right to leave (see Article 16 of the Articles on State Responsibility).

Last, under Australia’s offshore detention regime, the asylum seekers and refugees on Manus and Nauru cannot leave PNG and Nauru for Australia or any other country, except where they have returned (voluntarily or forced) to their state of origin, have been transferred to Australia for medical treatment, or resettled in the US. The government has continuously refused to accept New Zealand’s offer to resettle up to 150 refugees, which prevents those on Manus and Nauru leaving for New Zealand. In most cases, they cannot leave of their own accord because they have no passports or identity documents (which may have been confiscated by the Australian government) and need government permission and assistance to meet visa requirements.

This creates a real risk of Australia violating the right to leave of those on PNG and Nauru, who undoubtedly fall within Australia’s power and control. While Australia denies exercising such control, human rights bodies have consistently found that Australia has been doing just that. The legal responsibility of PNG and Nauru also falls to be assessed, specifically the lawfulness of ‘safe’ partner states obstructing or not facilitating departure to fulfil their obligations towards destination states like Australia.

It is arguably a violation of the right to prevent these asylum seekers and refugees leaving for all other states, as well as when the restriction is a blanket, automatic measure of indefinite duration. However, a violation of the right to leave could also conceivably occur where they cannot visit family abroad or leave the island for a holiday. Regardless of migration status, the starting point remains that everyone has the right to leave any country, and it is up to the state to show that the restriction is justified.

Conclusion

For the asylum seekers and refugees on Manus and Nauru, once resettled in a country other than Australia, it is possible they will never be able to leave for Australia for regular travel or work, again blocked by visas requirements and carrier sanctions as well as being ‘known’ to the Australian authorities. The right to leave and its significance for seeking asylum deserves greater attention. States like Australia seeking to halt irregular migration must ensure their policies align with the requirements of the right, notably by shifting the focus from containment to ensuring legal routes to safety exist.

Emilie McDonnell is a DPhil in Law candidate at University College, University of Oxford and is the 2016 Tasmanian Rhodes Scholar. She is an Adjunct Researcher at the University of Tasmania Law Faculty and an Associate of the Oxford Human Rights Hub.