The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Refoulement (Forced Return) and Expulsion

Refoulement (forced return) is when a State adopts measures, at its border, that prohibit and actively prevent a foreign person who is not already a legal resident of its territory from entering its national territory.

Expulsion is a measure by which the authorities of a State forbid an individual present on its territory to continue his or her stay there and proceed to escort the individual back to the border, or send him or her back to the State of origin.

To ensure the protection of refugees and avoid endangering them by sending them back to a country where their life is threatened, the 1951 Convention Relating to the Status of Refugees (Refugee Convention) and other international texts establish guarantees with regard to the prohibition of the expulsion or refoulement of refugees.

Guarantees in Case of Expulsion

States are forbidden from expelling or returning ( refouler ) a refugee to a territory where his or her life or freedom would be threatened. The only derogation allowed concerns individuals who represent a danger for the national security of the State in question or who, “having been convicted by a final judgment of a particularly serious crime, constitute a danger to the community of that country” (Art. 33 of Refugee Convention). The expulsion of such a refugee shall be carried out only following a decision reached in accordance with due process of law. The refugee has the right to submit evidence to clear him- or herself, to appeal the decision, and to be represented before the competent authority. If the decision to expel the person is upheld, he or she must be granted a reasonable period of time within which to seek legal admission into another country.

These provisions, set forth in Articles 32 and 33 of the Refugee Convention, are echoed in the 1966 International Covenant on Civil and Political Rights (Art. 13). However, in the Covenant, the provisions only concern aliens who are lawfully in the territory of a State Party.

The Principle of Nonrefoulement

The principle of non-refoulement represents the practical defense of an individual’s right not to be sent back by force toward a source of danger. It provides a sense of concrete reality to the right of asylum, which gives individuals the right to flee from persecution in their country but does not establish obligations on the part of States to give them asylum. Hence, the only guarantee left is the prohibition to send individuals back once they have fled their country of origin and entered the territory of another State. A refugee may not be returned to a State where he or she fears persecution. ▸ PersecutionRefugees

The principle of non-refoulement provides double protection:

  • It establishes that any individual who enters the territory of another, even illegally, has the right to submit a request for asylum and have his or her case heard.
  • Even if the request for asylum is denied, authorities are still prohibited from returning him or her to a territory where his or her life or liberty are threatened. In order to force an individual to leave the territory of first asylum, there must be a country of second asylum (known as the “safe third country”) that is willing to receive the refugee.

The principle of non-refoulement is increasingly threatened by an administrative practice carried out by governments, according to which they establish a list of countries declared to be “safe.” This practice does not give due consideration to the diversity of personal situations. The principle is also threatened by a general trend toward hastening the return of refugees to their country as soon as certain peace accords have been signed and before security has been reestablished. ▸ Human rightsIll treatmentRefugeesStateless personsTorture

However, it has become very difficult to find countries of second asylum, the tendency being to send asylum seekers back to their State of first asylum. The result is that more and more public authorities are closing their borders to avoid being the first safe State that a refugee reaches. In practice, this means that the right to asylum is increasingly threatened.

Asylum

The Principle of Non-refoulement

This principle is clearly set forth in most international and regional texts on relevant issues, including the following:

  • 1967 UN Declaration on Territorial Asylum (Art. 3.1)
  • Final Act of the 1954 UN Conference Relating to the Status of Stateless Persons (Art. 4)
  • 1969 OAU Convention on Refugees (Art. 2.3)
  • 1969 American Convention on Human Rights (Art. 22.8)
  • 1984 Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (Art. 3). This article clearly forbids returning an individual to a State where there is reason to believe that he or she might be at risk of torture; other forms of cruel, inhuman, or degrading treatment or punishment; or ill treatment (including rape).
  • 1951 Convention Relating to the Status of Refugees (Art. 33), which states:

No Contracting State shall expel or return (“ refouler ”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.▸ Human rightsIll treatmentRefugeesStateless personsTorture

Repatriation

Under the right conditions, it is possible to repatriate refugees. One of the most important conditions is that repatriation must be voluntary (Art. 5.1 of AU Convention): it must be up to the refugees to decide whether to return to their country of origin. Involuntary repatriation can be considered refoulement. ▸ Repatriation

AsylumPersecutionRefugeesRepatriationUNHCR

For Additional Information: Gillard, Emanuela-Chiara. “There’s No Place Like Home: States’ Obligations in Relation to Transfers of Persons.” International Review of the Red Cross 871 (September 2008): 703–50.

Hathaway, James C. Reconceiving International Refugee Law . The Hague: Martinus Nijhoff, 1997.

Zieck, Marjoleine. UNHCR and Voluntary Repatriation of Refugees: A Legal Analysis . The Hague: Martinus Nijhoff, 1997.

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