4.8.3 Enter one’s own country (ICCPR art 12(4)) Condensed entry: No one shall be arbitrarily denied of the right to enter his or her own country. Denial of the right to enter one’s own country may be as a result of stripping a person of his or her nationality, expulsion and forced exile. There are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable. A non-citizen could only consider a country his or her own if the country of immigration places unreasonable impediments on the acquiring of nationality by immigrants. Comprehensive entry: Article 12(4) of the ICCPR provides that ‘[n]o one shall be arbitrarily denied of the right to enter his own country.’ Similar provisions can be found in other international and regional human rights instruments.[1] The HRC has held: The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. 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. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country. The HRC has held that the right to enter one’s own country has been violated when a person has been forced into exile and could not return in safety.[2] (See *voluntary return in safety and dignity*). The right to enter one’s own country implies a right to remain in the country and thus not to be expelled.[3] (See *arbitrary deportation/exile*). The scope of one’s own country is broader than the concept country of nationality.[4] The HRC has held:[5] It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. However, the HRC has held that a non-citizen could only consider a country his or her own if the country of immigration places ‘unreasonable impediments on the acquiring of nationality’ by immigrants.[6] In Stewart v Canada, Mr Stewart, born in 1960, had immigrated to Canada with his parents when he was seven. In 1990 he was deported because of criminal convictions to the UK, of which he was a citizen. The HRC held:[7] Mr Stewart is a British national both by birth and by virtue of the nationality of his parents. While he has lived in Canada for most of his life he never applied for Canadian nationality. It is true that his criminal record might have kept him from acquiring Canadian nationality by the time he was old enough to do so on his own. The fact is, however, that he never attempted to acquire such nationality. Furthermore, even had he applied and been denied nationality because of his criminal record, this disability was of his own making. It cannot be said that Canada's immigration legislation is arbitrary or unreasonable in denying Canadian nationality to individuals who have criminal records. In Boughanemi v France, the ECtHR held that deportation of a resident non-national for a serious crime was not disproportionate inter alia because Mr Boughanemi had ‘never manifested a wish to become French’.[8]
[1] UDHR art 13(2), CERD art 5(d)(ii), CRC art 10(2), CMW art 8, ACHPR art 12(2). ACHR art 22(5) & ECHR Protocol 4 art 3(2) refers to ‘state of which he is a national’. [2]Jiménez Vaca v. Colombia communication 859/1999 (HRC 2002) para 7.4; HRC General Comment 27 para 19. [3]The right of nationals not to be expelled is explicitly included in ACHR art 22(5), ECHR Protocol 4 art 3(1). [4] HRC General Comment 27 para 20. [5]HRC General Comment 27 para 20. [6] Stewart v Canada communication 538/1993(HRC 1996) para 12.5. See also Madafferi v Australia communication 1011/2001 (HRC 2004). [7] Stewart v Canada para 12.6. [8] Application 22070/93 (ECtHR 1996)para 44. The ECtHR has, however, in some cases held that deportation of resident non-nationals (second-generation immigrants) violated the right to family life. See Nasri v France application 19465/92 (ECtHR 1995) (disability), Moustaquim v Belgium application 12313/86 (ECtHR 1991) (juvenile), Beldjoudi v France application 12083/86 (ECtHR 1992) (unsuccessful attempts to resume French nationality).
Condensed entry:
No one shall be arbitrarily denied of the right to enter his or her own country. Denial of the right to enter one’s own country may be as a result of stripping a person of his or her nationality, expulsion and forced exile. There are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable. A non-citizen could only consider a country his or her own if the country of immigration places unreasonable impediments on the acquiring of nationality by immigrants.
Comprehensive entry:
Article 12(4) of the ICCPR provides that ‘[n]o one shall be arbitrarily denied of the right to enter his own country.’ Similar provisions can be found in other international and regional human rights instruments.[1]
The HRC has held:
The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. 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. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country.
The HRC has held that the right to enter one’s own country has been violated when a person has been forced into exile and could not return in safety.[2] (See *voluntary return in safety and dignity*).
The right to enter one’s own country implies a right to remain in the country and thus not to be expelled.[3] (See *arbitrary deportation/exile*).
The scope of one’s own country is broader than the concept country of nationality.[4] The HRC has held:[5]
It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien.
However, the HRC has held that a non-citizen could only consider a country his or her own if the country of immigration places ‘unreasonable impediments on the acquiring of nationality’ by immigrants.[6] In Stewart v Canada, Mr Stewart, born in 1960, had immigrated to Canada with his parents when he was seven. In 1990 he was deported because of criminal convictions to the UK, of which he was a citizen. The HRC held:[7]
Mr Stewart is a British national both by birth and by virtue of the nationality of his parents. While he has lived in Canada for most of his life he never applied for Canadian nationality. It is true that his criminal record might have kept him from acquiring Canadian nationality by the time he was old enough to do so on his own. The fact is, however, that he never attempted to acquire such nationality. Furthermore, even had he applied and been denied nationality because of his criminal record, this disability was of his own making. It cannot be said that Canada's immigration legislation is arbitrary or unreasonable in denying Canadian nationality to individuals who have criminal records.
In Boughanemi v France, the ECtHR held that deportation of a resident non-national for a serious crime was not disproportionate inter alia because Mr Boughanemi had ‘never manifested a wish to become French’.[8]
[1] UDHR art 13(2), CERD art 5(d)(ii), CRC art 10(2), CMW art 8, ACHPR art 12(2). ACHR art 22(5) & ECHR Protocol 4 art 3(2) refers to ‘state of which he is a national’.
[2]Jiménez Vaca v. Colombia communication 859/1999 (HRC 2002) para 7.4; HRC General Comment 27 para 19.
[3]The right of nationals not to be expelled is explicitly included in ACHR art 22(5), ECHR Protocol 4 art 3(1).
[4] HRC General Comment 27 para 20.
[5]HRC General Comment 27 para 20.
[6] Stewart v Canada communication 538/1993(HRC 1996) para 12.5. See also Madafferi v Australia communication 1011/2001 (HRC 2004).
[7] Stewart v Canada para 12.6.
[8] Application 22070/93 (ECtHR 1996)para 44. The ECtHR has, however, in some cases held that deportation of resident non-nationals (second-generation immigrants) violated the right to family life. See Nasri v France application 19465/92 (ECtHR 1995) (disability), Moustaquim v Belgium application 12313/86 (ECtHR 1991) (juvenile), Beldjoudi v France application 12083/86 (ECtHR 1992) (unsuccessful attempts to resume French nationality).