Written by Susan Saliba
Non-refoulement is a core principle of international refugee law. As a part of customary international law, it is binding on all States even if they are not parties to the 1951 Convention and 1967 Protocol. Article 33(1) of the 1951 Geneva Convention provides that ‘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 principle of non-refoulement is enshrined in EU law in Article 78(1) TFEU and Article 18 and 19 of the EU’s Charter of Fundamental Rights . Judgments of the European Court of Justice (CJEU) and the European Court of Human Rights (ECtHR) have also consolidated the application of this principle in the EU. However, as countries face increasingly unmanageable migratory pressures, they often try to interpret their international obligations more restrictively. EU and non-EU countries have been criticised on this score. For instance, UNHCR has urged the EU to adopt more protection-sensitive border management that ensures compliance with the principle of non-refoulement . It has also expressed deep concern regarding Australia’s interception, detention and removal policies and the lack of protection provided by South-East Asian States. It should be noted that in cases of indirect or chain -refoulement , when one country returns an asylum-seeker to an allegedly ‘safe’ third country, which then returns the asylum-seeker to an unsafe country, both countries may bear responsibility. In addition, as countries struggle to reconcile national security with their human rights obligations, they are taking a closer look at Article 33(2) of the 1951 Convention, which provides that ‘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 ‘. In April 2014, following a long debate, the EU adopted a regulation which provides for Frontex-coordinated sea border surveillance operations to be carried out in accordance with the principle of non-refoulement and international search and rescue legislation. Finally, a debate is also emerging on the principle’s application to migration flows triggered by natural disasters and climate change.
EU legal framework on asylum and irregular immigration ‘on arrival’ / Eva-Maria Poptcheva. EPRS Briefing, 18 March 2015 (10p.)
A briefing taking stock of the existing legislative and policy framework in the field of asylum and irregular immigration and highlights the causes of friction.
Towards a Comprehensive European Migration Policy: 20 years of EU Action / European Commission – Fact Sheet, 4 March 2015
A short history of the European Union’s efforts to develop a common migration policy.
Expulsion to Face Torture? Non-refoulement in International Law / Aoife Duffy, in International Journal of Refugee Law, October 2008, Vol. 20 Issue 3 (p.373-390).
Duffy examines the status of non-refoulement in international law in the areas of refugee law, human rights law and international customary law. He suggests that although non-refoulement is part of international human rights law and international customary law, there is far less evidence that it has acquired the status of a jus cogens norm.
Regulation (EU) No 656/2014 of the European Parliament and of the Council of 15 May 2014 establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union
Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person
Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union
Regulation (EC) No 562/2006 of the European Parliament and of the Council of 15 March 2006 establishing a Community Code on the rules governing the movement of persons across borders (Schengen Borders Code)
Council Regulation (EC) No 2007/2004 of 26 October 2004 establishing a European Agency for the Management of Operational Coordination at the External Borders of the Member States of the European Union (Frontex)
International legislation and instruments
1951 Refugee Convention and 1967 Protocol
The 1950 European Convention on Human Rights
1982 United Nations Convention on the Law of the Sea
1979 International Convention on Maritime Search and Rescue
Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime (“the Palermo Protocol”) (2000)
Resolution 1821 (2011) of the Parliamentary Assembly of the Council of Europe (The interception and rescue at sea of asylum seekers, refugees and irregular migrants)
Court of Justice of the European Union
European Parliament v Council of the European Union , 5 September 2012
The European Parliament successfully sought the annulment of Council Decision 2010/252/EU of 26 April 2010 supplementing the Schengen Borders Code as regards the surveillance of the sea external borders in the context of operational cooperation coordinated by Frontex.
Joined Cases C-411/10 and C-493/10 , 21 December 2011
This case concerned the concept of ‘safe country’ within the Dublin system and respect for the fundamental rights of asylum-seekers. The Court held that EU law prevents the application of a conclusive presumption that Member States observe all the fundamental rights of the European Union. Article 4 of the Charter must be interpreted as meaning that Member States may not transfer an asylum seeker to the Member State responsible under the Dublin system if they cannot be unaware of systemic deficiencies in its asylum procedure and reception conditions for asylum seekers.
European Court of Human Rights
Sharifi and Others v Italy and Greece (Application no. 16643/09), 21 October 2014
The case examines allegations of the indiscriminate expulsion of foreign nationals from Italy to Greece who had no access to asylum procedures and who subsequently feared deportation to their countries of origin.
A.C. and Others v. Spain (Application no. 6528/11), 22 April 2014
The Court ruled that Spain violated the right to an effective remedy of 30 asylum seekers of Sahrawi origin who faced removal to Morocco before a thorough examination of their asylum application.
Hirsi Jamaa and Others v. Italy , (Application no. 27765/09), 23 February 2012
The case concerned Somali and Eritrean migrants intercepted at sea by the Italian authorities and sent back to Libya. The Court found that the applicants fell within the jurisdiction of Italy for the purposes of Article 1 ECHR (refer to Heijer and Giuffre below)
M.S.S. v. Belgium and Greece (Application no. 30696/09), 21 January 2011
The Court found that due to poor asylum conditions in Greece, Belgium had also violated the ECHR by returning an asylum seeker to Greece under the Dublin system (refer to Moreno-Lax below).
European Database on Asylum Law (online database containing case law from 17 EU Member States, the CJEU and ECtHR)
Migration: Parliament calls for urgent measures to save lives , press release concerning European Parliament resolution P8_TA-PROV(2015)0176 on the latest tragedies in the Mediterranean and EU migration and asylum policies, 29 April 2015 (refer to Texts, part 3)
European Parliament resolution of 12 March 2015 on the EU’s priorities for the UN Human Rights Council in 2015 (2015/2572(RSP)
The EP called on governments to respect, in all circumstances, the principle of non-refoulement and to comply fully with their international legal obligations with regard to the expulsion of migrants. It also noted the link between climate change and human rights.
European Parliament resolution of 11 February 2015 on the US Senate report on the use of torture by the CIA (2014/2997(RSP)
The EP condemned certain CIA practices which resulted in multiple human rights violations including the use of torture and other inhumane or degrading treatment, abduction, secret detention, detention without trial, and violations of the non-refoulement principle.
Special meeting of the European Council, 23 April 2015 – statement , press release
The Council committed, inter alia, to setting up a new return programme, coordinated by Frontex, for the rapid return of illegal migrants from frontline Member States, while respecting the right to seek asylum.
Joint Foreign and Home Affairs Council: Ten point action plan on migration , European Commission press release, Luxembourg, 20 April 2015
European Commission – Discours du Président Jean-Claude Juncker lors du débat au Parlement européen sur les conclusions du Conseil européen extraordinaire du 23 avri l, Strasbourg, press release, 29 April 2015
Jean-Claude Juncker stessed the importance of providing Frontex with the resources to fulfil its mandate, facilitating legal migration and stepping up development aid to bring down the number of people willing to risk irregular migration.
OHCHR’s Recommended Principles and Guidelines on Human Rights at International Borders
UNHCR comments on the Commission proposal for a Regulation of the European Parliament and of the Council establishing rules for the surveillance of the external sea borders in the context of operational cooperation coordinated by the European Agency for the Management of Operational Cooperation at the External Borders of the Member States of the European Union (Frontex) COM 2013(197) final, 17 April 2014
UN High Commissioner for Refugees (UNHCR), Asylum and international protection in the EU: strengthening cooperation and solidarity , January 2014
In these inputs to the Strategic Guidelines for future developmentof the area of freedom, security and justice, UNHCR urges the EU to ensure that the measures and practices of the Common European Asylum System (CEAS) secure absolute respect for the principle of non-refoulement and the right to asylum, in accordance with EU Charter of Fundamental Rights.
UN High Commissioner for Refugees (UNHCR), Asylum and international protection in the EUthe next five years? , 16 May 2014
Building on the abovementioned inputs, UNHCR welcomed, inter alia, the Commission’s plans to study the feasibility of joint asylum processing outside the EU and pointed out that more modern and efficient border management would entail a protection-sensitive approach at EU level, in full respect of the right to asylum and the principle of non-refoulement .
UNHCR Note on the Principle of Non-Refoulement , November 1997
Discussion note on the prinicple of non-refoulement prepared for the EU Seminar on the Implementation of the 1995 EU Resolution on Minimum Guarantees for Asylum Procedures, which took place in Luxembourg on 4 and 5 November 1997.
New approaches, alternative avenues and means of access to asylum procedures for persons seeking international protection / Elspeth Guild et al, Study for the LIBE Committee; 2014 (113p.)
This study examines the workings of the CEAS in order to assess the need and potential for new approaches to ensure access to protection for people seeking it in the EU, including joint processing and distribution of asylum seekers.
Bridging the gap: humanitarian protection and the convergence of laws in Europe / Meryll Dean, in European Law Journal, January 2014, Vol. 20 Issue 1 (p. 34-65).
Dean explores why Article 3 ECHR is much broader than Article 33 of the Refugee Convention and provides more protection against refoulement . She points out the advantage of a judicial body such as the ECtHR, whose case law serves as a reference for national courts. The Geneva Convention having no such judicial body, is open to different interpretations and has resulted in an ‘asylum lottery’. She also discusses how changes in the type of conflicts that lead to the cross-border movement of people in need of international protection may affect the Refugee Convention’s ability to provide adequate protection.
Reflections on refoulement and collective expulsion in the Hirsi case / Maarten Den Heijer, in International Journal of Refugee Law, June 2013 Vol. 25 No 2 (pp. 265–290).
The author comments on this landmark judgment, focusing on its wider implications: migrant interception and rescue operations at sea, direct and indirect refoulement under Article 3 ECHR, and safe third country and readmission practices. It also reflects on the judgment’s consequences for EU law.
Natural Disasters, Climate Change and Non-Refoulement : What Scope for Resisting Expulsion under Articles 3 and 8 of the European Convention on Human Rights? / Matthew Scott, in International Journal of Refugee Law; 2014, Vol. 26, No 3, (p. 404–432).
The author considers whether people displaced by sudden-onset natural disasters can rely on Articles 3 and 8 ECHR to resist expulsion. This article considers Article 3 ECHR in some depth but also puts forward climate change-specific arguments, applying them to hypothetical scenarios.
Terrorism and the Non‐derogability of Non‐refoulement / Rene Bruin and Kees Wouters, in International Journal of Refugee Law, January 2003 Vol. 15 Issue 1 (p. 5-29).
The authors consider whether it is possible to strike a balance between national security and the obligation to provide protection against refoulement in a post 9/11 context. They argue that it is possible to reduce the legal tension between absolute protection against refoulement and the States’ responsibility for national security since the prosecution of terrorists is more effective than exclusion.
Asylum in the EU: Facts and Figures / Giulio Sabbati; Eva-Maria Poptcheva and Susan Saliba. EPRS publication, 31 March 2015
Irregular immigration in the EU: Facts and Figures / Giulio Sabbati and Eva-Maria Poptcheva. EPRS publication, 24 April 2015
Non-refoulement approaches around the world
UNHCR Legal Position : Despite court ruling on Sri Lankans detained at sea, Australia bound by international obligations, Press Releases, 4 February 2015
UNHCR intervention before the Supreme Court of Canada in the case of Manickavasagam Suresh (Appellant) and the Minister of Citizenship and Immigration, the Attorney General of Canada (Respondents), 8 March 2001
Human Rights, Non-refoulement and the Protection of Refugees in Hong Kong / Kelley Loper / International Journal of Refugee Law. October 2010, Vol. 22 Issue 3, (p404-439. 36p.)