The Right to Leave Any Country and the Interplay between Jurisdiction and Proportionality in Human Rights Law

Abstract This article shows the importance in human rights law of the right to leave any country, in light of increasing efforts by European countries of destination to prevent departures and to contain movement by enlisting countries of origin and transit to act as gatekeepers. The article highlights the autonomous nature of the right and challenges in triggering its application. It assesses whether this right is opposable to destination countries, and finds two key challenges – first, meeting the requisite jurisdictional threshold, and secondly, as this is a qualified right, applying the proportionality test. The article examines the interplay between these difficulties. It argues that the jurisdictional threshold expresses a political and legal relationship between the duty bearer (the State) and the right holders (the individuals). This relationship enables us to operationalize the proportionality test – namely whether measures limiting rights are in accordance with the law and are proportionate.