Refoulement (Forced Return) and Expulsion

I. Guarantees in case of expulsion

States are forbidden from expelling or returning (refouler) a refugee or a person seeking asylum 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 the 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 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 ICCPR (art. 13). However, in the Covenant, the provisions only concern aliens who are lawfully in the territory of a State Party. Although States have the right to regulate migration and it is within their sovereign right to return migrants from their territory if they are deemed irregular, this right is not absolute and must obey strict conditions and procedural guarantees related to the respect of the PNR (infra).

Any decision to return a specific migrant must be exercised within the limits established by domestic and international law, in particular the PNR. The scope of the protection afforded by international law against refoulement for a specific migrant does not depend on its regular or irregular situation but rather on the risk associated to the country of return.

To allow such ad hoc individual assessment of risk in relation to any forced return, international law-both universal or regional- impose a clear prohibition of collective expulsions.

Collective expulsions are explicitly prohibited in a number of international and regional instruments (European Convention on Human Rights and Fundamental Freedoms’ (ECHR) Protocol No. 4 prohibiting Collective Expulsion (art. 4), American Convention on Human Rights (ACHR) (art. 22(9)), International Convention on the Protection of All Migrant Workers and Members of Their Families (art. 22(1)); the ACHPR (art. 12(5)), the Arab Charter on Human Rights (art. 26(2)), and can also be inferred from other treaty provisions that require individualized decisions on each migrant’s claim to remain in the country, see the ICCPR (art. 13) and the CFREU (art. 19(1)).

The European Court of Human Rights (ECtHR) defines “collective expulsion” as “any measure of the competent authority compelling aliens, as a group, to leave the country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual aliens of the group”. Moreover, expulsions of aliens must not be discriminatory nor arbitrary and no single measure can be taken to expel all persons having the nationality of a particular State or based on the fact that they belong to a certain group.

The ECtHR also considers that the right to an effective remedy under article 13 of the ECHR requires that States make available to the individual concerned the effective possibility of challenging the deportation decision (see the case Soering v. The UK, (Application no. 14038/88, Judgment, 7 July 1989). This prohibition does not mean that all expulsions en masse constitute collective expulsions. What is prohibited is that mass expulsions be carried out without an individual determination justifying the expulsion and without giving individuals the possibility to obtain a judicial review of an order or that is discriminatory.

II. The Principe of Non-Refoulement (PNR)

The PNR prohibits the transfer of persons from one authority to another when there are substantial grounds to believe that the person would be in danger of being subjected to violations of certain fundamental rights, including torture and other forms of ill-treatment, arbitrary deprivation of life or persecution. This principle is found, with variations in scope, in various bodies of international law, including international human rights law (IHRL) and international refugee law (IRL). It is also found in some extradition treaties. The core of the PNR is also considered in customary international law.

The PNR 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 including in an irregular manner. A refugee or a person seeking asylum may not be returned to a State where he or she fears persecution.

➔ Persecution; Refugees

The PNR 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.

This principle is also binding on States with regard to the prevention of torture and ill-treatment with regard to any person who is, even irregularly, on its territory, under its authority and control.

The PNR 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 rights; Ill treatment; Migrant-Migration; Refugees; Stateless persons; Torture

However, it has become very difficult to find countries of second asylum, the tendency being to send asylum seekers back to their country 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

Under IRL, it is generally recognized that the PNR applies to admission and rejection at the border. This is included in several key instruments of refugee protection and by the United Nations High Commissioner for Refugees (UNHCR) Conclusion adopted by the Executive Committee on the International Protection of Refugees (ExCom). Non-refoulement is also generally recognized (Inter-American Commission on Human Rights, ECtHR, UNHCR ExCom) as applying to interdiction operations (known as push-back) and rescue operations on the high seas.

Under IHRL there is no clear obligation to grant admission into (or disembarkation onto) a State’ territory. However, to effectively comply with the PNR under IRL, State should ensure admission of asylum seekers, at least temporarily, to carry out a fair and effective procedure to determine their status and protection needs.

Under IHRL, PNR must be respected toward all persons who are in need of protection against refoulement whatever their legal status is. It applies when a person is within the jurisdiction of a State, namely if they are within the territory (including territorial waters) or under the effective control of a State (including at borders, on the high seas or on the occupied territory of another State). This is widely supported (e.g., UNHCR, International Committee of the Red Cross, ECtHR (see the case of Hirsi Jamaa and al. v. Italy, (Application no. 27765/09), Judgment, 23 February 2012), Committee Against Torture, the Human rights Council General Comment No. 31) but a few still contest it (notably the United States and Australia). Human rights bodies and courts have also found that the PNR applies extraterritorially if a State exercises effective control. Traditionally, physical control (e.g., detention/capture) is required but it has been argued in the context of border closures (or pushback operations) that States aim to exercise effective control over the physical movement of migrants, even if only by directly preventing their movement. However, this point is not settled in jurisprudence.

Practically speaking, there are still unsettled questions regarding when persons are under the jurisdiction of a State. Likewise, simply denying entry, disembarkation or returning a boat to the high seas is not necessarily a breach of the PRN if it does not have the effect or result of sending back a person to a country where he or she is at risk. An example where this would be a a violation is, for example, is if the flag State does not accept responsibility for resettlement/relocation and the ship’s next port of call is in a country in which the person might be at risk, provided that the person can be said to be within the State’s jurisdiction.

➔ Boat people

Once a State exercises jurisdiction over an individual, if a person asks for international protection, they must be afforded the effective right to seek asylum and have access to fair and efficient procedures to determine their status and protection needs. A State planning to return a migrant has to assess carefully and in good faith whether the individual would be, upon return, at risk of being subjected to violations of certain fundamental rights, including torture and other forms of ill-treatment, arbitrary deprivation of life or persecution. Although this does not mean that a State must allow everyone on their territory, it does mean that before refusing admission or returning a migrant, their claim must be assessed and if a risk is found the person must not be returned. Therefore, States must adopt a course that does not amount to refoulement (granting protection, temporary protection, removal to a safe third country). 

➔ Asylum

To be effective, the prohibition of non-refoulement requires compliance with a number of minimum procedural safeguards. There may be higher standards depending on the applicable IHRL instruments or domestic law which can influence the procedural requirements in a particular situation. 

➔ Asylum; Boat people; Refoulement (forced return) and expulsion

Procedural safeguards of PNR

i. Timely information to the concerned person of the intended transfer;

ii. Opportunity for the person concerned to express to an independent and impartial body any fears he or she may have about the transfer and explain why he or she would be at risk;

iii. Suspension of the transfer while the person’s fears are considered on their merits, because of the irreversible harm that would be caused if the person were considered to be at risk of danger.

Even if a return order is deemed lawful, after thorough consideration and with respect of the minimum procedural guarantees, the PRN and the prohibition of collective expulsions, the conditions of the return procedure must also comply with international law.

Returns must be carried out in a manner that respects the rights and dignity of those being returned.

The methods used in carrying out returns must at no time violate the right to humane treatment, whether returns are considered voluntary or forced. For instance, force may only be used as a last resort, when other available means remain ineffective or without promise of achieving the desired result. In accordance with IHRL, any use of force must be consistent with the principles and requirements of legality, necessity, proportionality, precaution and liability. The intentional use of lethal force may only be used when strictly unavoidable in order to protect life.

Returns must be in full conformity with the right to family unity and the right to protection of private and family life. Accordingly, States must take all necessary measures to ensure respect of family rights and in particular to ensure that expulsions do not result in the involuntary separation of families, even if temporarily. If they do not pose an individual threat to security, families must have the right to choose whether they wish to remain in the country or join their family member elsewhere.

III. Repatriation 

Under the right conditions, it is possible to repatriate refugees. One of the most important conditions is that repatriation must be voluntary (Art. V(1) of the OAU 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