Definition and Meaning of the Freedom to Emigrate
Die Freedom to Emigrate refers to the right of a person to leave their country of origin in order to settle in another state, either permanently or temporarily. This right represents a fundamental guarantee of liberty within national and international legal frameworks. It forms an essential part of the concept of freedom of movement and is often closely associated with other personal, freedom, and protection rights.
Historical Development of the Freedom to Emigrate
Origins and Historical Evolution
Historically, the freedom to emigrate was by no means a given. Many states considered their populations a vital resource and subjected emigration to strict restrictions. Only with the advent of the European Enlightenment and the emergence of modern nation-states was the freedom to emigrate increasingly recognized as an individual right. In the 19th and 20th centuries, it evolved into an essential component of numerous constitutions and international human rights documents.
Freedom to Emigrate under National Law
Germany
Constitutional Foundations
Das Basic Law of the Federal Republic of Germany explicitly regulates the freedom to emigrate in Article 11(1) GG, which guarantees general freedom of movement guaranteeing: “All Germans shall have the right to move freely throughout the federal territory.” In addition, Article 2(2) GG guarantees the right to free development of the personality, which also includes the right to leave the country.
The explicit freedom to emigrate, however, is actually regulated in Article 2(2) sentence 2 GG: “Everyone has the right to leave the country.” This provision is subject to possible restrictions by law, for example in the case of criminal investigations or to safeguard significant legal interests.
Entry and Exit Regulations
The Federal Republic of Germany can, in individual cases, restrict departure. Permissible reasons for such restriction arise particularly under criminal or tax law, conscription law, or as part of epidemic control measures under the Infection Protection Act. Any such restrictions must be proportionate and serve a legitimate purpose.
Austria and Switzerland
The freedom to emigrate also exists in the legal systems of Austria and Switzerland. In Austria, it is protected under Article 4 of the ECHR—which is recognized as higher-ranking law by the constitution—and by the Federal Constitutional Law. In Switzerland, the freedom to emigrate derives from the Federal Constitution (Art. 24 BV).
Freedom to Emigrate under International Law
Universal Declaration of Human Rights (UDHR)
Article 13(2) of the Universal Declaration of Human Rights of 1948 stipulates:
“Everyone has the right to leave any country, including his own, and to return to his country.”
International Covenant on Civil and Political Rights (ICCPR)
The International Covenant on Civil and Political Rights (ICCPR) also secures in Article 12(2) the right of everyone to leave any country, including their own. Any restrictions—if permitted at all—can only be justified by law and must serve a public interest, national security, public order, public health or morals, or the protection of the rights and freedoms of others.
European Convention on Human Rights (ECHR)
Article 2 of Protocol No. 4 to the European Convention on Human Rights explicitly guarantees the freedom to emigrate and thus constitutes a key pillar of European human rights protection.
Scope and Limits of the Freedom to Emigrate
Legal Scope
The freedom to emigrate entitles natural persons to leave their country of origin. This right particularly concerns ending residence, changing domicile and residence, and traveling abroad. The freedom covers both short-term and permanent departures from the state; it applies regardless of whether the change of residence is to another country.
Restrictions and Requirements
The freedom to emigrate is not without limits. Exceptions—emigration bans—may apply, which are especially relevant in the following cases:
- Threats to the internal or external security of the state
- Criminal investigations or prosecution
- Fiscal obligations to the state
- Military and conscription provisions
- Epidemiological measures (e.g., during pandemics)
Such restrictions require constitutional legitimacy, must be suitable, necessary, and appropriate, and must always be proportionately structured in individual cases.
Distinction from the Right to Immigration and Return
The freedom to emigrate exists independently of any right to immigrate into other states. Individual states possess the sovereign right to decide on the entry and acceptance of foreigners. Thus, the practical freedom to emigrate may be curtailed by a lack of admission rights in the destination country. However, the right to return to one’s home country is generally separately guaranteed in the international instruments mentioned above.
Special Scenarios and Current Developments
Stateless Persons and Refugees
For stateless persons and refugees, the question arises to what extent the freedom to emigrate is guaranteed. Often, administrative or structural obstacles arise—especially due to lack of identification documents or insufficient means of crossing borders.
Emigration within the European Single Market
Within the framework of the European Union, the freedom to emigrate is reinforced by Union citizenship particularly through the freedom of establishment and the free movement of workers. EU citizens are generally allowed to settle in or leave any member state without requiring further permits (Art. 21 TFEU).
Legal Protection in Cases of Violation of the Freedom to Emigrate
Complaints and Legal Remedies
Affected individuals have recourse to the courts in the event of denied freedom to leave. Depending on the specific case, legal action may be brought before national administrative courts, or, in the case of international treaties, a complaint may be filed with the European Court of Human Rights (ECtHR). Judicial review regularly considers compliance with legal limits and the principle of proportionality.
Summary
The freedom to emigrate is a central human right and an indispensable aspect of personal freedom in modern democracies. It is broadly protected by numerous national and international legal norms. Restrictions, if permissible at all, are subject to strict requirements and judicial oversight. The practical significance of the freedom to emigrate continues to grow in the context of increasing mobility, growing connections between states, and international migration movements.
Frequently Asked Questions
What legal foundations secure the freedom to emigrate in Germany?
The freedom to emigrate in Germany is constitutionally protected by Art. 11(1) sentence 1 of the Basic Law (GG), which guarantees freedom of movement. According to this, every German has the right to travel freely abroad and to leave the federal territory. This legal position is specified by further regulations, such as the Passport Act (PassG), which in principle entitles every German to a passport. Restrictions on this freedom are only allowed on the basis of a law and for special reasons regulated in the Basic Law, such as for the protection of public safety or order. Further international regulations, such as the European Convention on Human Rights (ECHR) and the International Covenant on Civil and Political Rights (ICCPR), recognize the freedom to emigrate as a fundamental human right. Together, these norms ensure a high level of protection against state interference.
In which cases may the freedom to emigrate be legally restricted?
A restriction on the freedom to emigrate is only possible in exceptional cases explicitly regulated by law. Under German law, a travel ban may be imposed, for example, due to court orders (e.g. during ongoing criminal proceedings, pre-trial detention, or commencement of imprisonment), in cases of imminent significant danger to internal or external security, or to protect other important public interests. The Passport Act (§ 7 PassG) allows for the refusal or revocation of a passport in cases of reasonable suspicion of serious criminal offences or to avert a significant danger to the Federal Republic of Germany. International obligations (e.g. UN sanctions) can also result in restrictions. Such interventions are, however, subject to a strict proportionality test and must be justified by the authorities and subject to judicial review.
What are the legal consequences of emigration for civic duties such as tax or military obligations?
The freedom to emigrate does not automatically release individuals from specific civic duties. For example, those who relocate their residence abroad may still remain liable for tax in Germany under certain conditions, particularly if they retain substantial economic interests (unrestricted or restricted tax liability according to the Income Tax Act). Military service is currently not subject to active conscription in Germany, but if reintroduced, it may become relevant for German citizens who have emigrated abroad. Therefore, it is advisable to clarify obligations with the appropriate authorities, such as the tax or registration office, before and during emigration to properly fulfill any legal obligations and avoid fines or retrospective claims.
Does the freedom to emigrate also apply to minors or people with disabilities?
Minors are generally not able to leave the country independently; they require the consent of all legal guardians or an appropriate court order to travel abroad. In some cases, additional control mechanisms apply, such as increased passport checks or alerts at borders, particularly in cases of parental disputes (e.g. custody proceedings). For persons under guardianship, the possibility to leave the country depends on the responsibilities of the guardian; the guardian may require the approval of the guardianship court. In such cases, strict judicial scrutiny is applied to align the protection of fundamental rights with the welfare of the person concerned.
Do foreign nationals with permanent residence in Germany also have a right to freedom of emigration?
The freedom to emigrate under Art. 11 GG expressly refers to German nationals. Foreign nationals are subject to further special statutory regulations regarding entry and exit, particularly under the Residence Act (AufenthG). While the right to leave Germany generally also applies to them, it can be restricted by immigration law conditions, such as during ongoing expulsion proceedings, unresolved residence status, or for security reasons. Asylum seekers and persons with tolerated stay status may only leave the federal territory with explicit permission; otherwise, they risk losing their residency status or triggering consequences under asylum law.
What rights apply with respect to re-entry into Germany after previous emigration?
German nationals cannot, as a rule, be permanently denied re-entry to their home country (right of abode). This results from citizenship in connection with Art. 16(1) sentence 2 GG, which prohibits the expulsion of Germans. Temporary restrictions (for example, in connection with quarantine orders or during exceptional security situations) are only possible under strict conditions and must be proportionate. Foreign emigrants generally require the appropriate (re-)entry documents and, where applicable, a visa for return, the issuance of which is subject to the applicable immigration regulations at the time of application.
How can legal disputes relating to the freedom to emigrate be enforced?
Legal disputes concerning the freedom to emigrate—for example, the withdrawal or refusal of travel documents or the imposition of an exit ban—can be challenged before German administrative courts. Affected individuals have the right to challenge administrative measures by objection or legal action and to seek judicial review. Effective legal protection is enshrined in the Basic Law (Art. 19(4) GG). Depending on the individual case, emergency applications are also possible if urgent court protection is required for an imminent departure. International legal remedies—such as recourse to the European Court of Human Rights—are also available under certain conditions.
