January 07, 2021
By Andrea Preziosi (University of Birmingham – School of Law)
When I started writing this post, I was stuck in Birmingham few days before Christmas instead of being on a flight to Italy to spend the holiday break with my family. Needless to say, it was not my decision, but the result of the decision of the Italian government, as well as many other governments around the world, to ban flights from the UK following the reported news of a new variant of Covid-19 detected in south-east England that threatened to spread anywhere else. Frustration, anger and sadness are not enough to describe my feelings when the news broke out. I thought that Italy had disrupted my plan to visit my family and condemned me to pass Christmas in total loneliness, as if the forced isolation lasting almost one year had not been enough.
However, as rage and dismay cooled off (a bit), rationality and the desire to enquire that are in the DNA of every jurist started kicking in. I thus asked myself: can a state prohibit its own citizens from returning home? (I will use “home” from now on to signify “country of citizenship”). Of course any distinction based on the fact that there was no actual prohibition in place, but only a ban on travel by air, train or car would be specious. Apart from some marathon runners, going home on foot was outside the possibility for most of us (and, well, the UK is an island anyway…). I was ready to concede that there are powerful arguments for states to claim that they can (even have to) do that, because they need to protect the health of their citizens (those already in the state territory) from the alleged emergency constituted by a new strain that, reportedly, spreads more rapidly than previous ones. Perhaps, I thought, knowing that what states are doing falls within the boundaries of what is permissible in law would make me feel better, and that the sacrifice of thousands of citizens stuck abroad is not in vein. Who wouldn’t be (a bit) relieved to know that his or her state is trying to protect its people while complying with international obligations?
The legal framework
Doing some research, I was not surprised that the situation is unprecedented, in a legal sense: there is no legal precedent in IHRL! The only seemingly clear starting point is that Art.3(2) of Protocol No.4 to the European Convention on Human Rights baldly asserts: “No one shall be deprived of the right to enter the territory of the State of which he is a national”. By reading the provision, it is noticeable the absence of any limitation clause for public health, national security and so on. Quite interestingly, freedom of movement, of which the right to return home is conceptually part, can be instead restricted on different grounds (Art.2(3) of the same Protocol No.4). Logically, therefore, one might think that the right to return for a citizen has a special importance in the Convention system. The Explanatory Report of Protocol No.4 shows that the drafters where mostly concerned about two situations: 1) the right to return home is subject to the obligation to give proof of nationality, if so required; 2) a measure such as quarantine cannot be interpreted as refusal of entry. Interestingly, then, the Report foresees the possibility of putting a citizen in quarantine (clearly, to safeguard public health) on arrival, but not the refusal of entry of a citizen for being a threat to public health.
That the right to return home seems to occupy a special place in IHRL seems confirmed by the International Covenant on Civil and Political Rights. Art.12(4) states that “no one shall be arbitrarily deprived of the right to enter his own country”. Importantly, Art.12(4) is placed right below the grounds (including public health) allowing restrictions of freedom of circulation in general (paragraphs 1-2-3): in other words, the right to return home is not subject to those grounds for restrictions. Art.12(4), differently from the ECHR, only refers to arbitrary deprivations. As General Comment No.27 (Freedom of Movement) makes it clear, “arbitrary” means that any interference must be in accordance with the aims and purposes of the ICCPR and be reasonable. However, “the Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one’s own country could be reasonable” (par.21, emphasis added), providing only an example of an arbitrary interference constituted by a State stripping a person of nationality for the purpose of preventing his or her return.
The very few cases examined by the Human Rights Committee in which the right was invoked concerned applicants who were deported to another country and were not allowed to stay in the one they considered being their home. The cases of Deepan Budlakoti v Canada and Nystrom, Nystrom & Turner v Australia, for example, both concerned applicants with extensive criminal records that had ties, albeit tenuous, with another country of origin, that governments tried to exploit in order to deny the applicants’ right to stay in the country in which they had been living for most of their lives (it must be recalled that Art.12(4) ICCPR is wider in scope than the corresponding provision in the ECHR, since it applies not only to citizens: see General Comment No.27, par.20).
Arguably, the right to return home seems to have as its “natural” field of application precisely those situations related to deportation of people with multiple citizenships or ties with more than one country, that give states some leeway to argue that they can lawfully impede these people from returning, or even deprive them of citizenship to this effect. This latter scenario calls to mind the widely-reported case of Shamima Begum, the British foreign fighter who was stripped of her citizenship by the British government in order to prevent her from returning to the UK. The Court of Appeal held that she was entitled to enter the UK to effectively challenge her citizenship deprivation. Though the last word on the case is yet to be said by the UK Supreme Court, the Court of Appeal’s ruling shows that the citizen’s right to enter his or her own country is of such a paramount importance that a person who had his citizenship revoked retains nonetheless the right in order at least to fight the revocation in court. The right to return home, in fact, seems to be increasingly relevant in light of the practice inaugurated by some governments of revoking foreign fighters’ citizenship as a way to prohibit their return.
On the other hand, the right to return home might be also relevant in other situations, and in connection with other rights, such as the right to private and family life, or even right to property. In fact, even though the right has never been expressly invoked before the European Court of Human Rights as a stand-alone right, it has been implicitly recognised as a necessary precondition in order to guarantee the enjoyment of property rights. In Loizidou v Turkey, the ECtHR acknowledged that the Turkish authorities in control of northern Cyprus had breached the applicant’s right to property by preventing her from having access to the Turkish-occupied area where she owned some properties. Admittedly, the case at stake involved a peculiar situation in which the applicant was outside northern Cyprus when it became a territory occupied by Turkish forces. Even so, the right to return for the sake of enjoying peaceful possession of property in Loizidou appears relevant in a situation involving two States (albeit one of them being widely unrecognised).
To date, there has not been any instance in which the right to return home had been called into question with respect to a citizen vis-à-vis her or his country of citizenship, when no third country or other citizenship was introduced into the equation. Arguably, before the pandemic forced us to re-think what seemed rather legally uncontroversial, it was not really disputed that States were obliged to let citizens return to their country. Nor had the issue arisen before human rights courts about the compatibility of the right to return with general interests, such as public health.
Less restrictive measures
Now, one might surely speculate that even if IHRL does not expressly permit limitations to the right to return home on public health grounds, that does not mean that such limitations are not anyway allowed. After all, the ECtHR has told us that “inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights” (Soering v UK, § 89). In addition, a declaration of emergency under Art.15 ECHR might allow a derogation from this right. Either way, the issue then would be whether a wholesale prohibition for citizens to return would ever be necessary and proportionate in order to protect public health. Wouldn’t be possible to resort to less restrictive measures? Some authors believe that it is possible. In fact, , the Italian government, for example, after only 48 hours of travel ban, decided that citizens were allowed to return provided that they showed a negative Covid test result on departure and agreed to get tested again on arrival and to self-isolate for fourteen days. Other States have adopted similar precautions in order to avoid a total block of their citizens abroad. It was the European Commission, on 22nd December, to vigorously insist that states should have lifted such a blanket ban on travel.
But perhaps this is not the key theme. Perhaps all this talking about provisions, paragraphs, proportionality and so on is just background noise for states that need to show that, one way or another, they are acting to protect people’s health in time of pandemic. The emergency requires fast response, States argue, especially when a new Covid-19 variant threatens to spread faster than previous strains. Thus, they believe they can prohibit citizens from returning home, even if only for 48 hours. Is this legal? Nobody asks this question anymore. The point is that there seems to be a widespread assumption that, if States do it, then there is no issue anymore on whether they can do it. They can do it, just because they do it.
When I finally managed to jump on a flight home, on Christmas day, and amidst huge bureaucratic hurdles, I could not stop thinking about the nonsense of those few days of madness. Did it make sense to block thousands of citizens across the UK for just 48 hours? Did the emergency constituted by the new strain of Covid-19 cease after two days, when the travel ban was lifted? Is there even a logical rationale for a State to claim that they need to leave citizens abroad to protect the public health of the citizens at home? I am afraid these questions will have no answers. Around me, there were hundreds of Italians less lucky than me, who had managed to fly after spending days at the airport, with no place to stay, perhaps because they were moving back to Italy, or were blocked in London during a stopover from another country. A quick glance on social media made me realise that, while media outlets reported about the hundreds of Italians struggling to go back home, there were other hundreds vomiting their rage against them, apparently guilty of trying to travel to Italy and jeopardising the health of those who were already spending Christmas with their loved ones, perhaps because they had been lucky enough to get on an airplane minutes before a sudden decree prevented them from doing so. If anybody dared to reply that citizens have the right to return home, the mainstream counter-reply would have been: “no, there is a pandemic!”. It then seemed clear to me that the states’ belief that they can curtail any right for a greater collective good had permeated also the minds of a large chunk of the population, now ready to justify whichever emergency measure is deemed indispensable to counter the threat of the day (two days, as it was the case).
Some seventy years ago, Hannah Arendt argued that being human is, regrettably, not enough for a person to be able to enjoy rights, because only citizenship allows a person to have what she polemically called “the right to have rights”. The pandemic has come to challenge even this already problematic aspect: sometimes even being a citizen might not be enough to shield a person from being at the mercy of his or her own State’s emergency power.
Andrea Preziosi is Global Challenges PhD Scholar at the School of Law of the University of Birmingham, under the supervision of Prof Fiona de Londras and Dr Natasa Mavronicola. His research on security and fundamental rights is funded by the University of Birmingham Global Challenges Research Fund.